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i.  Norton  on  Bills  and  Notes.      (3d Edition.) 

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3.  Shipman's  Common-Law  Pleading.      (2d  Edition. ) 

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19.  Clark  on   Corporations.      (2d  Edition. ) 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKcivey  on  Evidence.      (2d  Edition. ) 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  o?i  Equity. 

26.  Tiffany  on  Principal  and  Agent. 

27.  Gardner  on   Wilis. 

28.  Vance  on  Insurance. 

29.  Ingersoll  on  Public   Corporations. 

30  Hughes  on  Federal  Jurisdiction  and  Procedure. 

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C5855a 


HANDBOOK 


OF 


JURISDICTION    AND    PROCEDURE 

IN    UNITED    STATES 

COURTS 


By  ROBERT  M.  HUGHES,  M.  A. 

OF    THE    NORFOLK    (VA. )    BAR 

Author  of  Handbook  of  Admiralty  Law 


St.   Paul,  Minn. 

WEST  PUBLISHING  CO. 

1904 


T 

19  ~4 


COXTBIGHT,  1804, 

WEST  PUBLISHING  CO. 


9 


In  Meruoriam 

ROBERT  W.  HUGHES,  LL.  D. 

L1.  S.  District  Judge 

1874-1898, 


PREFACE. 


This  treatise  is  designed  to  fulfill  the  usual  functions  of  the 
Hornbooks  on  the  subject  of  which  it  treats.  It  does  not  pur- 
port to  be  an  exhaustive  or  elaborate  discussion,  as  such  a  plan 
would  involve  several  volumes,  instead  of  one.  It  is,  however, 
intended  to  be  a  means  of  ready  reference  to  the  law  on  those 
questions  of  ordinary  routine  which  the  author's  experience  as 
a  specialist  in  federal  practice  has  taught  him  most  frequently 
arise.  It  is  believed  that  the  need  exists  for  a  work  of  this 
character,  notwithstanding  the  several  excellent  text-books 
covering  the  general  subject  which  go  into  much  greater  de- 
tail. The  work  is  designed,  also,  for  use  in  law  schools,  where 
the  need  of  such  a  treatise  seems  to  be  specially  apparent.  The 
author  has  taken  great  pains  to  adapt  it  to  this  need.  In  order 
to  render  it  more  available  for  this  purpose,  he  has  inserted 
in  the  appendix  a  table  of  illustrative  cases,  which  he  hopes 
will  be  found  useful  by  those  teachers  who  prefer  the  case 
system. 

It  has  seemed  to  the  author  much  better  and  simpler  in  the 
discussion  of  the  subject  to  commence  with  the  inferior  courts 
and  follow  up  through  the  courts  of  last  resort,  though  that  is 
not  the  usual  scheme  adopted  by  other  text-books  on  the  sub- 
ject. While  this  plan  involves  some  duplication  and  cross- 
referencing  in  case  of  subjects  of  which  the  different  federal 
courts  have  concurrent  jurisdiction,  its  advantage  in  enabling 
the  student  to  trace  a  case  from  its  inception  to  its  final  con- 
clusion is  so  great  as  to  have  convinced  the  author  that  it  is  the 
best  method  of  treating  the  subject. 

In  the  discussion  of  so  much  detail,  mistakes  are  inevitable, 
and,  although  the  author  has  endeavored  to  exercise  the  utmost 
care,  he  cannot  hope  to  have  escaped  them.  He  begs  the  in- 
dulgence of  the  bar  if  any  such  have  occurred. 

(vii)* 


TABLE  OF   CONTENTS. 


CHAPTER  I. 

OF  THE  SOURCE  OF  FEDERAL  JURISDICTION  AND  THE  LAW 
ADMINISTERED  BY  FEDERAL  COURTS. 

Section  Page 

1.  The  Source  of  the  Jurisdiction 3-5 

2.  Derivation  of  Powers  of  Federal  Courts 5 

3.  No  Federal  Common  Law 5-7 

4.  The  Law  Administered  8 

5.  Same — Law  of  Local  State  When  No  Written  Federal 

Law  Applicable 8 

6.  Same— Statutes  of  Local  State 9-12 

7.  Same — Unwritten  Law  of  Local  State 12-14 

8.  Same — Construction  of  State  Statute 12-14 

9.  State  Law  of  Title  to  Real  Property 15 

10.  Contract  or  Personal  Relations 15 

11.  Not  Bound  by  State  Law  in  Questions  of  General  or 

Commercial  Character  16-17 


CHAPTER  H. 

THE  DISTRICT  COURT— ITS  CRIMINAL  JURISDICTION  AND 

PRACTICE. 

12.  The  Federal  Judicial  System 18-20 

13.  The  District  Court 20-22 

14.  Criminal  Jurisdiction  of  the  District  Courts 22-25 

15.  Criminal  Procedure  25-29 

16.  Procedure  by  Complaint  25-29 

17.  United  States  Commissioners 25-29 

18.  Place  of  Trial— Warrant  of  Removal 30-33 

19.  Same— Proper  Place  30-33 

Hughes  Fed.Jue.  (ix) 


TABLE   OF   CONTENTS. 


CHAPTER  in. 

THE  DISTRICT  COURT  (Continued)— CRIMINAL  JURISDICTION 
AND  PRACTICE  (Continued). 

Section  Page 

20.  Indictment    34-37 

21.  Same — Form  of  Indictment  87-42 

22.  Information    43 

23.  Same — Form  of  Information 43 

24.  The  Defense  44-^8 

25.  The  Trial  and  Its  Incidents 48-59 


CHAPTER  IV. 

THE  DISTRICT  COURT  (Continued)— CRIMINAL  JURISDICTION 
(Continued)— MISCELLANEOUS   JURISDICTION. 

26.  Piracy    6° 

27.  Penalties,  Forfeitures,  and  Seizures 60-61 

28.  Same — Nature  and  Form  61-65 

29.  Miscellaneous  Jurisdiction  65-66 

30.  Admiralty    67-68 

31.  Same — Nature  and  Form  67-68 

32.  Further  Miscellaneous  Jurisdiction 69-72 

33.  Concerning  Suits  by  and  against  National  Banks 69-72 


CHAPTER  V. 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY. 

34.  Bankruptcy — Jurisdiction  Over   73-77 

35.  Same — History  of  the  Legislation 73-77 

36.  Same— Policy  of  the  Legislation 73-77 

37.  Constitutionality  of  Bankrupt  Legislation 77-79 

38.  Same — Effect  of  Federal  on  State  Legislation 79-80 

39.  The  Bankruptcy  Courts 81-83 

40.  Parties — Voluntary  Proceedings 83-84 

41.  Same — Involuntary  Proceedings 84—88 

42.  Pleadings   88-95 

43.  Acts  of  Bankruptcy — Definition  and  Enumeration 95-97 


TABLE  OF  CONTENTS.  XI 

Section  Page 

44.  Same — Transfers  to  Hinder,  Delay,  and  Defraud  Cred- 

itors         95-97 

45.  Same — Illegal  Preferences  97-98 

46.  Same — Suffering  Preferences  by  Legal  Process 98-101 

47.  Same — Assignments  as  an  Act  of  Bankruptcy 101-103 

48.  Same — Admission  of  Insolvency  in  Writing 103-104 

49.  Time  of  Filing  Petition 104-105 


CHAPTER  VI. 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued). 

50.  The  Process  on  an  Involuntary  Petition 106-108 

51.  The  Warrant  of  Seizure 108-110 

52.  The  Appointment  of  a  Receiver 111-112 

53.  The  Defense 112-114 

54.  The  Right  to  a  Jury 114-115 

55.  The  Adjudication    115 

56.  The  Creditors'  Meeting 116-124 

57.  The  Examination  of  the  Bankrupt 124-126 

CHAPTER  VH. 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued). 

58.  The  Trustee  127-128 

59.  The  Title  of  the  Trustee .' 128-134 

60.  The  Trustee's  Duties  of  Administration — Recordation  of 

Decree  of  Adjudication 134 

61.  Same— The  Collection  of  the  Assets 134-135 

62.  Same — Trustee's  Rights  against  Parties  Claiming  Ad- 

versely under  Alleged  Void  Transfers,  etc 136-138 

63.  Same — The  Circumstances  Avoiding  an  Alleged  Illegal 

Transfer    138-139 

64.  Same — Same — Insolvency    139-141 

65.  The  Trustee's  Interest  in  Insurance  Policies 141 

66.  The  Trustee's  Interest  in  Rights  of  Action 141-142 

67.  The  Trustee's  Power  of  Sale 142-143 

68.  The  Trustee's  Duties  as  to  Distribution  of  the  Estate. .  .143-145 

69.  The  Trustee's  Duties  as  to  the  Bankrupt's  Exemptions.  .145-146 


Xil  TABLE   OF   CONTENTS. 


CHAPTER   VIII. 

DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued). 

Section  Page 

To.     The  Discharge — Application  for 147-148 

71.  Same — Method  of  Opposing 148-150 

72.  Same— Burden  of  Proof 150-151 

73.  Grounds  of  Opposition  to  Discharge 151-156 

74.  The  Debts  Not  Affected  by  a  Discharge 157-159 

75.  Revocation  of  a  Discharge 159-160 


CHAPTER  IX. 

THE   DISTRICT   COURT   (Continued)— MISCELLANEOUS 
JURISDICTION. 

76.  Claims  against  the  United  States — Proper  Forum 161-162 

77.  Same— The  Subjects  of  Jurisdiction 1G2-165 

78.  Same— The  Procedure 165-166 

79.  Same — The  Appeal  166-167 

80.  Same — The  Proper  Appellate  Court 167-1 6S 

81.  Suits  to  Abate  Unlawful  Inclosures  of  Public  Lands 169-170 

82.  Suits  under  the  Interstate  Commerce  Act 170-171 

83.  Condemnation  Proceedings  171-174 

84.  Writ  of  Habeas  Corpus 174-178 

85.  Same — Federal  Jurisdiction 178-180 

86.  Same — When  Jurisdiction  Exercised 181-182 

87.  Same — The  Particular  Federal  Courts — Courts  Having 

Jurisdiction  to  Issue  182-183 

88.  Same — Procedure  on  Habeas  Corpus 184-186 


CHAPTER  X. 

THE  CIRCUIT  COURT— ORIGINAL  JURISDICTION. 

89.  Organization  of  the  Circuit  Courts 187-188 

90.  Sessions  of  the  Circuit  Courts 189 

91.  The  Jurisdiction  of  the  Circuit  Courts— Criminal  Juris- 

diction     189-192 


TABLE  OF  CONTENTS.  Xlll 

Section  Page 

92.  The  Civil  Jurisdiction  of  the  Circuit  Courts 189-192 

93.  Same— Suits  of  a  Civil  Nature  at  Common  Law  or  in 

Equity— Meaning   of   "Suit." 192-194 

94.  Same— Same— Suits  at  Law 194-195 

95.  Same— Same— Suits   in    Equity 194-195 

96.  Same— Jurisdictional   Amount    196-202 

97.  Same — Federal   Questions    202-209 

98.  Same — Controversies     between    Citizens    of    Different 

States — Natural  Persons  209-213 


CHAPTER  XI. 

THE  CIRCUIT  COURT  (Continued)— ORIGINAL   JURISDICTION 

(Continued). 

99.     Same — Same — Corporations    214-220 

100.  Same— Same— Plurality  of  Litigants   220-225 

101.  Same  —  Controversies   between    Citizens    of   the    Same 

State    Claiming    Lands    under    Grants    of    Different 
States     225-226 

102.  Same — Controversies  between  Citizens  of  a  State  and 

Foreign  States,  Citizens,  or  Subjects 226-228 

103.  Same — Venue  of  Actions   22S-232 

104.  Same— Same— Rule  When  Litigants  are  Numerous 232-233 

105.  Same— Same— Suits    against   Defendants    of    Different 

Districts  in  Same  State,  and  Suits  in  Rem 233-239 

106.  Same— Jurisdiction  as  Affected  by  Assignment 239-245 


CHAPTER   Xn. 

THE  CIRCUIT  COURT  (Continued)— ORIGINAL  JURISDIC- 
TION (Continued). 

107.  Same — Devices  to  Confer  Jurisdiction 246-250 

108.  Same — Miscellaneous  Jurisdiction    251-266 

109.  Jurisdiction  as  Incident  to  Jurisdiction  on  the  Grounds 

Previously  Discussed  2G0-274 


Xiy  TABLE   OF   CONTENTS. 


CHAPTER  XIII. 

THE  CIRCUIT  COURT  (Continued)— JURISDICTION  BY 

REMOVAL. 

Section  Paee 

HO.     Removals  from  the  United  States  District  Courts 275-27(5 

111.  Removals  from   State  Courts— Purpose  of   Such  Juris- 

diction      276-277 

112.  Nature  of  the  Right— How  Far  Waivable 277-280 

113.  Scope  of  the  Jurisdiction 280-283 

114.  Federal  Questions    2S3-291 

115.  Suits  by  the  United  States 292 


CHAPTER  XIV. 

THE  CIRCUIT  COURTS  (Continued)— JURISDICTION  BY 
REMOVAL  (Continued). 

116.  Controversies  between  Citizens  of  Different  States 293-296 

117.  Devices  to  Prevent  Removal 296-297 

118.  Controversies    between    Citizens    of    the    Same    State 

Claiming  Lands  under  Grants  of  Different  States 298-299 

119.  Controversies  between  Citizens  of  a  State  and  Foreign 

States,  Citizens,  or  Subjects 299-300 

120.  Parties'  Entitled  to  Remove 300-301 

121.  Separable  Controversies    301-308 

122.  Removal  on  Ground  of  Prejudice  or  Local  Influence 309-314 

123.  Removal  because  of  State  Denial  of  Equal  Civil  Rights..314-316 

124.  Removal  of  Suits  against  OfiBcers  or  Persons  Enforcing 

the  Internal  Revenue  Laws 317-320 


CHAPTER  XV. 

THE  CIRCUIT  COURT  (Continued)— JURISDICTION  BY 
REMOVAL  (Continued). 

125.  Steps  to  Secure  and  Effect  Removal— In  General 321-322 

126.  Form  of  Petition  in  General 322-325 

127.  Place  to  File  Petition 326-332 


TABLE  OF   CONTENTS.  2T7 

Page 
Section 


128.  Proper  Averments  In  the  Petition 826-332 

129.  The  Removal  Bond  oS~qqo 

130.  Time  of  Filing  Petition 666-o6iS 


131 


CHAPTER  XVI. 

THE  CIRCUIT  COURT  (Continued)— JURISDICTION  BY 

REMOVAL  (Continued)— ORIGINAL  JURISDICTION 

OF  THE  SUPREME  COURT— OTHER  MINOR 

COURTS  OF  ORIGINAL  JURISDICTION. 

O.L.  Steps  at  Filing  of  Petition 339-340 

132.  Filing  and  Subsequent  Procedure  in  Federal  Court 341-345 

133.  Motion  to  Remand  346-347 

134.  The  Supreme  Court  as  a  Court  of  Original  Jurisdiction..347-352 

135.  Various  Other  Courts  of  Original  Jurisdiction 352 


CHAPTER  XVH. 

PROCEDURE  IN  THE  ORDINARY  FEDERAL  COURTS  OF 
ORIGINAL  JURISDICTION— COURTS  OF  LAW. 

136.  Distinction  between  Law  and  Equity 353-354 

137.  Procedure  in  Courts  of  Law 35o-3o6 

138.  Same— Process 356-358 

139.  Same— Attachments    358-359 

140.  Same — Appearances    

141.  Same— Parties  to  Common-Law  Actions 359-360 

142.  Same— Pleading    360-362 

143.  Same — Continuances    36~ 

144.  Same— Trial     362-364 

145.  Same— Same— Evidence    364-36o 

146.  Same— Same— Instructions  to  Jury 366-368 

147.  Same— Same— Bill  of  Exceptions   3G9-3 . 1 

148.  Same— Same— Verdict    371-372 

149.  Same— Motion  for  New  Trial 872~S 

150.  Same— Motion  in  Arrest  of  Judgment ^  373 

151.  Same— Judgment    373-375 

152.  Same— Execution    376-377 


Xvi  TABLE   OF   CONTENTS. 


CHAPTER  XVIII. 

PROCEDURE  IN  THE  ORDINARY  FEDERAL  COURTS  OP 

ORIGINAL  JURISDICTION  (Continued)— COURTS 

OF  EQUITY. 

Section  PaS« 

153.  General  Limits  of  Equitable  Jurisdiction 378-379 

154.  The    Equity    Procedure    in    the    Federal    Courts — How 

Regulated    380-382 

155.  Same — Pleading— General  Requisites  of  the  Bill 382-386 

156.  Same — Same — Injunction   Bills    386-388 

157.  Same — Same — Judges  who  may  Issue  Injunctions 388-389 

L58.     Same — Same — Injunctions  to  State  Courts 389-391 

159.  Same— The  Process   391-393 

160.  Same— Defaults 393-395 

161.  Same— The  Defense   395-402 


CHAPTER  XIX. 

PROCEDURE   IN   THE   ORDINARY   FEDERAL   COURTS   OF 

ORIGINAL  JURISDICTION  (Continued)— COURTS 

OF  EQUITY  (Continued). 

162.  The  Defense  (Continued) — The  Answer 403^06 

163.  Same — Same — Joinder  of  Issue  on 406-407 

164.  The  Proofs   408 

165.  Same — Testimony  on  Commission  and  Interrogatories.  .408-409 

166.  Same— Testimony  in  Open  Court 409-410 

167.  Same — Testimony  by  Deposition 410-411 

168.  Same — Testimony  before  Examiner 411^112 

160.     References    412-417 

170.  The  Decree — Form  of  417 

171.  Same — Its  Enforcement   417-421 

172.  Same — Reopening  of  Decree  422-423 


TABLE   OF  CONTENTS.  XVU 


CHAPTER  XX. 

APPELLATE  JURISDICTION— THE  CIRCUIT  COURT  OP 

APPEALS. 

Section  Pag6 

173.  The  Appellate  Courts   424-426 

174.  The  Circuit  Court  of  Appeals— Its  Organization 426-428 

175.  Jurisdiction  of  the  Circuit  Court  of  Appeals 428-429 

176.  Same — Cases  Excepted  from  the  Jurisdiction  of  the  Cir- 

cuit Court  of  Appeals  430-435 

177.  Same — Instances  of  the  Jurisdiction 436-444 

178.  Same — Cases  in  which  the  Decision  of  the  Circuit  Court 

of  Appeals  is  Final 445-449 

179.  Same— Power  of  Circuit  Court  of  Appeals  to  Issue  Aux- 

iliary Writs  ^9 


CHAPTER  XXI. 

APPELLATE   JURISDICTION   (Continued)— THE   SUPREME 

COURT. 

180.  The  Supreme  Court  of  the  United  States— Its  Organ- 

ization  450-452 

181.  The  Appellate  Jurisdiction  of  the  Supreme  Court— The 

Courts  whose  Decisions  are  Reviewable  by  the   Su- 
preme Court • 452-468 

182.  Appeals   from   the   United   States   District  and  Circuit 

Courts    452-468 

183.  Appeals  from  the  Circuit  Courts  of  Appeals 468-477 

184.  Appeals  from  Territorial  Courts 478-479 

185.  Appeals  from  the  Court  of  Appeals  of  the  District  of 

Columbia    479-480 

186.  Appeals  from  the  Court  of  Claims 480-481 

187.  Appeals  from  the  Court  of  Private  Land  Claims 480-481 

188.  Review  of  State  Court  Decisions 480-481 

189.  Same — Constitutionality    481^82 

190.  Same — The  Proceedings  Reviewable 483 

Hughes  Fed.  Jub. — b 


XViii  TABLE   OF  CONTENTS. 

Section  Pago 

101.     Same — The  Courts  whose  Decisions  are  Reviewable 483-484 

192.  Same — By  Whom  the  Right  of  Review  may  be  Invoked..485-488 

193.  Same — Character  of  Questions  Reviewable 485-488 

194.  Same — How    a    Federal    Question   must   be    Raised   or 

Shown  by  the  Record 489-494 


CHAPTER  XXII. 

PROCEDURE  ON  ERROR  AND  APPEAL. 

195.  Review  by  the  Supreme  Court 495-497 

196.  Same— Writ  of  Error 497-508 

197.  Same— Appeal    50S-511 

198.  Same— Other  Methods   512-520 

199.  Review  by  the  Circuit  Court  of  Appeals 521-523 

200.  Trial  in  the  Appellate  Courts 524-526 

APPENDIX. 

RULES  OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES 

AND  RULES  OF  PRACTICE  FOR  THE  COURTS  OF 

EQUITY  OF  THE  UNITED  STATES. 

(Pages  527-574.) 
1 


K 


A    HANDBOOK 


OF 


FEDERAL   JURISDICTION    AND 
PROCEDURE. 


INTRODUCTION. 

WHAT  IT  COMPREHENDS. 

The  subject  of  federal  jurisdiction  and  procedure  includes  the 
body  of  laws  administered  in  the  federal  courts,  and 
the  organization  and  powers  of  the  different  courts 
charged  with  the  duty  of  administering  those  laws. 

The  federal  government  being  one  of  delegated  powers  only, 
the  questions  coming  before  the  federal  courts  for  discussion 
and  decision  necessarily  are  only  those  which  the  federal  Con- 
stitution, or  the  acts  of  Congress  passed  in  pursuance  thereof, 
have  intrusted  to  those  courts. 

The  subject  logically  resolves  itself  into  the  following  gen- 
eral analysis,  which  will  be  followed  in  this  work: 

A.  The  law  administered  and  its  origin : 

(1)  Solely  statutory. 

(2)  Composed  of 

(a)  Federal  statutes; 

(b)  State  laws. 
Hughes  Fed.  Jub. — l 


INTRODUCTION. 

B.  The  courts  administering  the  federal  law: 

(1)  The  courts  of  original  jurisdiction: 

(a)  The  District  Court. 

(1)  Its  criminal  jurisdiction; 

(2)  Its  civil  jurisdiction. 

(b)  The  Circuit  Court. 

(1)  Its  criminal  jurisdiction ; 

(2)  Its  civil  jurisdiction. 

(c)  The  Supreme  Court. 

(d)  Certain  miscellaneous  courts  of  no  general 

interest ;  e.  g.,  Court  of  Claims,  territorial 
courts,  etc. 

(2)  The  courts  of  appellate  jurisdiction: 

(a)  The  Supreme  Court. 

(b)  The  Circuit  Courts  of  Appeals. 


(Ch.  1,  §    1)  FEDERAL  JURISDICTION. 


CHAPTER  L 

OF  THE  SOURCE  OF  FEDERAL  JURISDICTION  AND  THE  LAW 
ADMINISTERED  BY  FEDERAL  COURTS. 

1.  The  Source  of  the  Jurisdiction. 

2.  Derivation  of  Powers  of  Federal  Courts. 

3.  No  Federal  Common  Law. 

4.  The  Law  Administered. 

5.  Same— Law  of  Local  State  when  No  Written  Federal  Law  Ap- 

plicable. 

6.  Same — Statutes  of  Local  State. 

7.  Same — Unwritten  Law  of  Local  State. 

8.  Same — Construction  of  State  Statute. 

9.  State  Law  of  Title  to  Real  Property. 
10.     Contract  or  Personal  Relations. 

1L    Not  Bound  by  State  Law  in  Questions  of  General  or  Commercial 
Character. 


THE  SOURCE  OF  THE  JURISDICTION. 

1.  The  jurisdiction  administered  by  the  federal  courts  arises 
exclusively  from  the  federal  Constitution  and  the  laws 
and  treaties  made  under  its  authority. 

The  dual  system  of  government  under  which  we  live  renders 
us  subject  to  the  Constitution  and  laws  of  our  state  in  most 
matters  of  local  concern,  and  to  the  federal  Constitution  in 
national  and  international  matters.  This  latter  Constitution, 
becoming  effective  thirteen  years  after  the  independence  of 
the  original  states,  and  only  adopted  after  great  opposition, 
is  a  constitution  of  limited  scope;  containing  simply  the 
powers  therein  expressly  granted,  and  leaving  with  the  states 
all  powers  not  enumerated  and  too  vast  to  be  numerable. 

In  the  conflict  along  the  necessarily  uncertain  border  land 
between  those  federal  powers  expressly  granted  and  those 
cautiously  and  jealously  withheld,  it  required  but  little  pre- 


4  FEDERAL  JURISDICTION.  (Cb.  1 

science  to  realize  that  a  system  of  national  courts  was  neces- 
sary to  protect  the  new  government  in  retaining  and  defend- 
ing the  privileges  and  duties  imposed  upon  it  by  this  new  and 
untried  document.  The  experience  of  the  states  under  the 
Articles  of  Confederation  had  taught  this  beyond  peradven- 
ture.  And  our  history  from  the  adoption  of  the  Constitution 
to  the  present  time  has  shown  beyond  question  that  if  state 
courts  alone  had  been  intrusted  with  the  duty  of  construing 
the  Constitution,  especially  in  those  doubtful  and  difficult 
questions  as  to  the  relative  powers  of  the  states  and  the  na- 
tion, it  would  have  been  emasculated  and  rendered  impotent 
to  accomplish  the  objects  for  which  it  was  designed.  The 
national  courts  and  the  long  line  of  great  jurists  who  have 
sat  in  them  have  saved  it  from  this  fate,  and  given  it  the  vigor 
and  vitality  which  permeate  the  nation.  If,  as  some  say, 
they  have  made  of  it  an  instrument  which  its  original  drafts- 
men never  designed  and  of  which  they  never  dreamed,  it  is 
but  just  to  say  in  their  vindication  that  they  have  made  of  us 
a  nation  of  which  our  fathers  never  dreamed. 

The  judicial  power  of  the  United  States  courts,  as  a  whole, 
is  conferred  by  article  3,  §  2,  par.  1,  of  the  Constitution,  which 
provides :  "The  judicial  power  shall  extend  to  all  cases,  in 
law  and  equity,  arising  under  this  Constitution,  the  laws  of 
the  United  States,  and  treaties  made,  or  which  shall  be  made, 
under  their  authority;  to  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls;  to  all  cases  of  admiralty 
and  maritime  jurisdiction ;  to  controversies  to  which  the 
United  States  shall  be  a  party ;  to  controversies  between  two 
or  more  states ;  between  a  state  and  citizens  of  another 
state ;  between  citizens  of  different  states ;  between  citizens 
of  the  same  state  claiming  lands  under  grants  of  different 
states,  and  between  a  state,  or  the  citizens  thereof,  and  for- 
eign states,  citizens  or  subjects." 

It  will  appear,  when  we  come  to  consider  the  distribution 
of  this  general  mass  among  the  different  federal  courts,  that 
Congress  has  not  exhausted  the  powers  conferred  upon  it  by 


§  3)  NO    FEDERAL    COMMON    LAW.  5 

this  section,  and  that  it  has  left  many  controversies  to  the 
state  courts  which  it  could  have  bestowed  upon  the  federal 
courts. 

DERIVATION  OF  POWERS  OF  FEDERAL  COURTS. 

2.  The   federal  courts  are  courts   of  limited   jurisdiction,   and 

derive  their  powers  solely  from  statute. 

Except  as  to  the  subjects  expressly  intrusted  to  the  Su- 
preme Court  by  paragraph  2  of  this  same  section,  an  act  of 
Congress  is  necessary  before  the  courts  can  take  cognizance 
of  any  of  the  cases  above  named.1 

As  the  national  government  itself  is  a  government  of  dele- 
gated powers  only,  it  follows  that  its  courts  are  courts  of 
special  jurisdiction  only,  and  hence  the  party  applying  to 
them  for  relief  must  first  satisfy  them  that  they  have  the  right 
to  give  it.2  This  must  be  shown  by  reference  to  some  stat- 
ute giving  the  right  to  the  relief  sought,  for  the  United  States, 
as  a  nation,  have  no  common  law. 

NO  FEDERAL.  COMMON  LAW. 

3.  There  is  no  general  common  law  of  the  United  States  as  a 

nation,  and  hence  the  common-law  rights  administered 
by  the  federal  courts  arise  incidentally  in  exercising 
some  statutory  jurisdiction  conferred  upon  them. 

Before  the  adoption  of  the  federal  Constitution,  each  state 
was  an  independent  sovereign,  with  its  own  body  of  laws,  the 
basis  of  which,  as  to  the  original  thirteen  states,  was  the 
English  common  law.     The  formation  of  the  national  govern- 

i  U.  S.  v.  Hudson,  7  Cranch,  32,  3  L.  Ed.  259;  Grover  &  Baker 
Sewing  Mach.  Co.  v.  Machine  Co.,  18  Wall.  553,  577,  21  L.  Ed.  914. 

2  GRACE  v.  INSURANCE  CO.,  109  U.  S.  278,  3  Sup.  Ct.  207,  27  L. 
Ed.  932;  Mansfield,  C.  &  L.  M.  R.  Co.  v.  Swan,  111  TJ.  S.  379,  4  Sup. 
Ct.  510,  28  L.  Ed.  462 ;  Fishback  v.  Telegraph  Co.,  161  U.  S.  96,  16 
Sup.  Ct.  506,  40  L.  Ed.  630. 


6  FEDERAL   JURISDICTION.  (Cb.  1 

ment  made  no  change  in  this  respect,  and  the  organization 
of  the  national  courts  merely  resulted  in  additional  tribunals, 
before  whom  questions  of  general  jurisdiction  would  come 
in  the  states  where  they  sat,  and  in  the  cases  of  which  they 
are  given  jurisdiction.  The  federal  court  of  a  state  is  not 
an  alien  tribunal.  It  takes  judicial  notice  of  all  things  of 
which  a  court  of  the  same  state  would  take  judicial  notice, 
and  is  in  many  particulars,  to  be  presently  discussed,  con- 
trolled by  the  decisions  of  the  state  court. 

The  fact  that  the  United  States,  as  a  nation,  have  no  com- 
mon law,  was  decided  very  early  in  its  history.  In  the  case 
of  U.  S.  v.  Hudson  3  an  attempt  was  made  to  prosecute  the  de- 
fendant as  guilty  of  a  common-law  libel,  but  the  court  held 
that  the  prosecution  would  not  lie.  In  the  later  case  of 
Wheaton  v.  Peters4  the  Supreme  Court  reiterated  that  there 
was  no  common  law  of  the  United  States,  but  that  the  law  of 
the  state  was  administered  by  the  federal  court,  including  so 
much  of  the  common  law  as  that  state  had  adopted. 

This  subject  has  undergone  much  discussion  of  recent 
years,  and  expressions  may  be  found  in  judicial  opinions  in- 
timating that  there  is  a  body  of  common  law  of  the  United 
States  as  a  nation.  They  are  in  cases  where  the  federal  courts 
have  not  felt  themselves  bound  by  decisions  of  courts  of  the 
state.  Properly  construed,  they  do  not  assert  a  right  to  ad- 
minister any  federal  common  law,  but  merely  a  right  of  in- 
dependent judgment  in  deciding  questions  of  general  interest 
in  which  the  nation  at  large  is  interested.  Or,  to  put  it  in 
another  way,  the  federal  courts  in  such  cases  are  not  assert- 
ing the  existence  of  any  federal  common  law,  but  merely 
claiming  the  right  to  differ  with  the  courts  of  the  state  on 
the  question  what  is  the  common  law,  when  that  question 
is  one  of  general  importance.  As  the  federal  courts  were 
designed  to  protect  nonresidents,  this  right  of  independent 

•  7  Cranch,  32,  3  L.  Ed.  259.  *  8  Pet.  591,  8  L.  Ed.  1055. 


§  3)  NO   FEDERAL  COMMON   LAW.  7 

judgment  as  to  what  is  the  common  law  is  essential  to  the 
accomplishment  of  the  object  for  which  they  were  created. 

This  distinction  is  well  drawn  by  Mr.  Justice  Matthews  in 
Smith  v.  Alabama,5  where  he  says:  "There  is  no  common 
law  of  the  United  States,  in  the  sense  of  a  national  customary 
law,  distinct  from  the  common  law  of  England  as  adopted 
by  the  several  states  each  for  itself,  applied  as  its  local  law, 
and  subject  to  such  alterations  as  may  be  provided  by  its 
own  statutes.  *  *  *  A  determination  in  a  given  case  of 
what  that  law  is  may  be  different  in  a  court  of  the  United 
States  from  that  which  prevails  in  the  judicial  tribunals  of  a 
particular  state.  This  arises  from  the  circumstance  that  the 
courts  of  the  United  States,  in  cases  within  their  jurisdic- 
tion, where  they  are  called  upon  to  administer  the  law  of 
the. state  in  which  they  sit  or  by  which  the  transaction  is 
governed,  exercise  an  independent  though  concurrent  juris- 
diction, and  are  required  to  ascertain  and  declare  the  law 
according  to  their  own  judgment.  This  is  illustrated  by  the 
case  of  New  York  Cent.  R.  Co.  v.  Lockwood,  17  Wall.  357 
[21  L.  Ed.  627]  where  the  common  law  prevailing  in  the 
state  of  New  York,  in  reference  to  the  liability  of  common 
carriers  for  negligence,  received  a  different  interpretation 
from  that  placed  upon  it  by  the  judicial  tribunals  of  the  state ; 
but  the  law  as  applied  was  none  the  less  the  law  of  that 
state."  The  language  of  Mr.  Justice  Brewer  in  Western 
Union  Telegraph  Co.  v.  Call  Publishing  Co.a  probably  means 
no  more  than  this. 

b  SMITH  v.  ALABAMA,  124  U.  S.  465,  8  Sup.  Ct.  564,  31  L.  Ed. 
&>8. 

«  181  U.  S.  92.  21  Sup.  Ct.  561,  45  L.  Ed.  765. 


FEDEliAL  JURISDICTION.  (Cll.  1 


THE  LAW  ADMINISTERED. 

4.  A    federal    court    of    original    jurisdiction    administers    the 

body  of  law  of  the  state  -wherein  it  sits,  -whenever  ques- 
tions arising  under  that  law  come  before  it  in  contro- 
versies of  which  it  is  given  jurisdiction. 

For  instance,  federal  courts  are  given  cognizance  of  con- 
troversies between  citizens  of  different  states.  Such  a  con- 
troversy may  involve  almost  any  question  which  might  arise 
in  a  state  court  between  citizens  of  the  state,  whether  at 
common  law,  in  equity,  or  questions  of  extraordinary  rem- 
edies. In  the  absence  of  congressional  enactments  specially 
bearing  upon  it,  the  federal  court  would  try  the  case  sub- 
stantially as  the  state  court,  following  the  decisions  of  the 
latter  in  some  instances,  and  striking  out  along  its  own  lines 
in  others.  Hence  it  is  now  necessary  to  consider  how  far 
state  laws  and  decisions  are  binding  upon  the  federal  courts, 
and  how  far  they  may  be  disregarded. 

SAME— LAW  OF  LOCAL  STATE  WHEN  NO  WRITTEN  FED- 
ERAL LAW  APPLICABLE. 

5.  Under  section  721,  Rev.  St.  U.  S.   [1  U.  S.  Comp.  St.  1901, 

p.  581],  the  laws  of  the  several  states,  except  where 
the  Constitution,  treaties,  or  statutes  of  the  United 
States  otherwise  require  or  provide,  shall  be  regarded 
as  rules  of  decision  in  trials  at  common  law  in  the 
courts  of  the  United  States  in  cases  -where  they  apply. 

Under  this  provision  it  becomes  necessary  to  consider  what 
is  meant  by  the  "laws  of  the  several  states."  In  those  com- 
monwealths deriving  their  jurisprudence  from  the  English 
common  law,  the  body  of  law  is  either  statutory  or  unwritten. 
The  evidence  of  the  latter  is  the  decisions  of  the  courts  of 
the  state  administering  it.  Hence  it  becomes  necessary  to 
consider  how  far  each  of  these  two  sources  of  state  law  is 
applied  in  the  federal  courts. 


§  6)  THE    LAW    ADMINISTERED. 


SAME— STATUTES  OF  LOCAL  STATE. 

6.  The  statutes  of  a  state,  in  so  far  as  they  regulate  substan- 
tive rights,  and  also  in  so  far  as  they  regulate  remedies 
on  the  common-law  side  of  the  court,  are  adopted  and 
enforced  by  the  federal  courts  where  they  do  not  con- 
flict with  the  federal   Constitution  and  statutes. 

Under  this  principle,  state  statutes  of  limitations  are  en- 
forced by  the  federal  courts  in  common-law  actions.7  The 
statute  of  frauds  of  a  state  is  enforced  in  the  federal  courts.8 
State  statutes  giving  a  right  of  action  for  damages  resulting 
in  death  authorize  such  actions  in  the  federal  as  well  as  the 
state  courts.8  State  statutes  permitting  a  plea  of  set-off, 
legal  in  its  nature,  authorize  the  filing  of  such  a  plea  in  similar 
cases  in  the  federal  courts,  and  a  cross-judgment  upon  it,  but 
not  with  the  effect  of  ousting  the  equitable  jurisdiction  of  the 
federal  courts,  or  of  conferring  an  equitable  jurisdiction  or 
allowing  equitable  defenses  in  such  courts  on  their  common- 
law  side,  for  the  distinction  between  law  and  equity  is  sedu- 
lously guarded  in  these  courts.10 

Statutes  of  Evidence. 

State  statutes  of  evidence  apply  in  the  federal  courts  except 
in  so  far  as  they  are  modified  by  section  858  of  the  United 
States  Revised  Statutes.11  Before  the  enactment  of  section 
858,  it  had  been  held  that  state  statutes  of  evidence  were 
adopted  by  section  721  as  rules  of  decision  in  the  federal 
courts  on  the  common-law  side.12 

t  Bauserman  v.  Blunt,  147  U.  S.  647,  13  Sup.  Ct.  466,  37  L.  Ed.  316; 
Metcalf  v.  Watertown,  153  U.  S.  671,  14  Sup.  Ct  947,  38  L.  Ed.  861; 
Campbell  v.  Haverhill,  155  U.  S.  610,  15  Sup.  Ct.  217,  39  L.  Ed.  280. 

8  Moses  v.  Bank,  149  U.  S.  298,  13  Sup.  Ct.  900,  37  L.  Ed.  743. 

»  Dennick  v.  Railroad  Co.,  103  U.  S.  11,  26  L.  Ed.  439. 

io  Scott  v.  Armstrong,  146  U.  S.  499,  512,  13  Sup.  Ct.  148,  36  L.  Ed. 
1059;    Charnley  v.  Sibley,  73  Fed.  980,  20  C.  C.  A.  157. 

ii  1  U.  S.  Comp.  St.  1901,  p.  659. 

12  Haussknecht  v.  Claypool,  1  Black,  431,  17  L.  Ed.  172;   Vance  t. 


10  FEDERAL  JURISDICTION.  (Cll.  1 

This  does  not  mean,  however,  that  state  decisions  as  to 
common-law  rules  of  evidence  are  binding  on  the  federal 
courts.  In  questions  of  evidence  not  statutory,  the  latter 
courts  decide  for  themselves  what  the  common-law  rule  is.18 

By  the  act  of  July  2,  1862,14  an  express  provision  was  in- 
serted in  the  federal  statute  law,  making  the  state  laws  as 
to  the  competency  of  witnesses  the  rules  of  decision  in  the 
federal  courts,  not  only  at  common  law,  but  in  equity  and 
admiralty  also. 

Then,  after  the  agitation  in  relation  to  the  liberation  of 
the  negro  race  had  resulted  in  their  emancipation,  it  was 
thought  necessary  to  extend  the  rules  of  evidence  for  their 
protection ;  and  the  consequence  was  a  provision  in  the  ap- 
propriation act  of  July  2,  1864,15  to  the  effect  that  in  the 
courts  of  the  United  States  there  shall  be  no  exclusion  of  any 
witness  on  account  of  color,  nor,  in  civil  actions,  because  he 
is  a  party  to  or  interested  in  the  issue  tried.  This  was  amend- 
ed by  the  act  of  March  3,  1865, 16  by  adding  the  clause  in  ref-j 
erence  to  executors,  administrators.,  and  guardians. 

Section  858  is  therefore  a  combination  of  these  three 
acts.  Its  text  is  as  follows:  "In  the  courts  of  the  Unit- 
ed States  no  witness  shall  be  excluded  in  any  action  on 
account  of  color,  or  in  any  civil  action  because  he  is  a  party 
to  or  interested  in  the  issue  tried :  provided,  that  in  actions 
by  or  against  executors,  administrators,  or  guardians,  in 
which  judgment  may  be  rendered  for  or  against  them,  neither 
party  shall  be  allowed  to  testify  against  the  other,  as  to  any 
transaction  with,  or  statement  by,  the  testator,  intestate,  or 
ward,  unless  called  to  testify  thereto  by  the  opposite  party,  or 


Campbell,  1  Black,  427,  17  L.  Ed.  168;  Wright  v.  Bales,  2  Black,  535, 
17  L.  Ed.  264;   Ryan  v.  Bindley,  1  Wall.  66,  17  L.  Ed.  559. 

is  Union  Pac.  Ry.  Co.  v.  Yates,  79  Fed.  584,  25  C.  C.  A.  103,  40  L. 
R.  A.  553. 

14  12  Stat.  588,  c.  189  [U.  S.  Comp.  St.  1901,  p.  659]. 

16  13  Stat.  351,  c.  210  [U.  S.  Comp.  St.  1901,  p.  659]. 

m  13  Stat.  533,  c.  113  [U.  S.  Comp.  St.  1901,  p.  659]. 


§  6)  THE    LAW   ADMINISTERED.  11 

required  to  testify  thereto  by  the  court.  In  all  other  re- 
spects the  laws  of  the  state  in  which  the  court  is  held  shall  be 
the  rules  of  decision  as  to  the  competency  of  witnesses  in 
the  courts  of  the  United  States  in  trials  at  common  law,  and 
in  equity  and  admiralty."  1T 

Hence,  under  section  721,  state  statutes  of  evidence  gov- 
ern in  the  common-law  courts  in  common-law  cases,  in  so 
far  as  they  do  not  conflict  with  section  858  and  the  other 
sections  contained  in  title  13,  c.  17,  of  the  Revised  Statutes, 
whilst  under  section  858  they  apply  to  equity  and  admiralty 
courts  as  well,  in  so  far  as  they  regulate  the  competency 
of  witnesses,  and  do  not  conflict  with  the  other  provisions  of 
that  section.18  But  since  the  enactment  of  this  section,  the 
national  courts  have  a  rule  of  their  own  in  relation  to  dis- 
qualification on  account  of  interest,  or  in  cases  where  one 
of  the  parties,  in  the  absence  of  statute,  would  possess  an 
advantage  over  the  other  from  loss  of  evidence  by  death, 
and  in  such  cases  the  state  statutes  do  not  apply.19 

In  actions  by  or  against  executors,  etc.,  it  is  to  be  observed 
that  the  test  whether  the  other  party  can  testify  applies  only 
as  between  parties  to  the  suit.  One  who  is  not  a  party  of 
record  is  not  excluded  merely  because  he  is  interested  in  the 
result.20  In  this  respect  the  statute  differs  from  many  of 
the  state  statutes  (e.  g.,  section  3346,  Code  Va.),  which  makes 
the  parties  to  the  transaction,  and  not  the  parties  to  the  suit, 
the  test.  And  if  the  suit  is  not  by  the  executor,  administrator, 
or  guardian,  the  statute  does  not  apply.     Hence  in  a  suit  by 

it  1  TJ.  S.  Comp.  St.  1901,  p.  659. 

is  CONNECTICUT  MUT.  LIFE  INS.  CO.  V.  TRUST  CO.,  112  U. 
S.  250,  5  Sup.  Ct.  119,  28  L.  Ed.  708;  Ex  parte  Fisk,  113  U.  S.  713,  5 
Sup.  Ct.  724,  28  L.  Ed.  1117;  Goodwin  v.  Fox,  129  U.  S.  601,  9  Sup. 
Ct.  367,  32  L.  Ed.  805. 

18  Potter  v.  Bank,  102  U.  S.  163,  26  L.  Ed.  Ill;  Whitford  v.  Clark 
Co.,  119  U.  S.  522,  7  Sup.  Ct.  306,  30  L.  Ed.  500. 

20  Potter  v.  Bank,  102  U.  S.  163,  26  L.  Ed.  Ill;  King  v.  Worth- 
ington,  104  U.  S.  44,  26  L.  Ed.  652. 


12  FEDERAL   JURISDICTION.  (Cll.  1 

a  widow  the  opposite  party  may  prove  transactions  with  the 
decedent.21 

The  provision  as  to  interest  does  not  remove  any  disquali- 
fication except  that  of  interest.  As  the  common-law  rule 
forbidding  husband  and  wife  to  testify  for  or  against  each 
other  was  based  on  reasons  of  public  policy,  and  not  of  in- 
terest, this  statute  did  not  remove  that  disqualification,  and 
they  could  not  so  testify,  unless  under  a  state  statute  allow- 
ing it.22 

The  act  does  not  apply  to  criminal  cases,  except  in  relation 
to  exclusion  on  account  of  color.2* 


SAME-UNWRITTEN  LAW  OF  LOCAL  STATE. 

7.  The  federal  court  adopts  not  only  the  statutory  law  of  the 

state,  hut  its  unwritten  law  as  well,  in  the  main.  It 
follows  the  decisions  of  the  state  courts  generally,  hut 
with  some  exceptions  hereinafter  noted. 

SAME— CONSTRUCTION  OF   STATE   STATUTE. 

8.  Under  this  principle,  the  federal  court  adopts  the  construc- 

tion placed  upon  the  statute  of  a  state  hy  its  court  of 
last  resort. 

In  such  case  the  state  decision  construing  the  statute  en- 
ters into  and  becomes  part  of  the  statute,  as  far  as  the  federal 
court  is  concerned.24  Hence,  if  a  state  court  of  last  resort 
holds  one  of  its  statutes  to  be  valid  as  far  as  the  state  Con- 


2i  Crawford  v.  Moore  (C.  C.)  28  Fed.  824. 

2J  Lucas  v.  Brooks,  18  Wall.  43(5,  21  L.  Ed.  779;  Northwestern 
Union  Packet  Co.  v.  Clough,  20  Wall.  528,  22  L.  Ed.  406;  Hopkins 
v.  Grimshaw,  165  U.  S.  342,  17  Sup.  Ct.  401,  41  L.  Ed.  739. 

2  3  Logan  v.  U.  S.,  144  U.  S.  263,  12  Sup.  Ct.  617,  36  L.  Ed.  429. 

24  Aberdeen  Bank  v.  Chelialis  Co.,  166  U.  S.  440,  17  Sup.  Ct  629, 
41  L.  Ed.  1069. 


§§  7-8)  THE    LAW   ADMINISTERED.  13 

stitution  is  concerned,  such  construction  will  be  followed  by 
a  federal  court.25 

This  principle  applies  to  constructions  of  the  state  Con- 
stitution as  well  as  to  decisions  on  its  Code.28  It  applies  to 
state  constructions  of  its  statutes  of  limitation.27  Also  to 
questions  relating  to  municipal  or  county  organizations,  their 
powers  and  boundaries.28  The  federal  courts,  under  this 
principle,  will  follow  the  state  decisions  as  to  the  effect  of  its 
Sunday  laws  upon  the  validity  of  a  contract,  or  the  right  of 
recovery  for  a  tort.29  Also  the  construction  of  a  state  stat- 
ute regulating  assignments  to  secure  creditors.80 

The  above  are  but  illustrations  of  a  numerous  class  in  which 
the  state  decisions  are  followed.  The  reason  is  the  great 
inconvenience  that  would  result  from  having  two  independent 
and  co-ordinate  sets  of  courts  administering  the  same  body 
of  law  in  different  ways.  Where  no  necessity  arises  of  pro- 
tecting the  litigants  for  whom  the  federal  courts  were  spe- 
cially intended,  the  state  decisions  will  be  followed.  But 
when  that  necessity  arises,  the  federal  courts  can  no  longer 
permit  their  hands  to  be  tied,  and  hence  the  exceptions  to 
the  rule  spring  from  such  necessities.  Therefore  the  state 
construction  of  the  state  statute  is  no  longer  binding  when 
the  question  is  whether  that  statute  violates  the  federal  stat- 

2B  Brown  v.  New  Jersey,  175  U.  S.  172,  20  Sup.  Ct.  77,  44  L.  Ed.  49; 
Wilson  v.  North  Carolina,  169  U.  S.  586,  18  Sup.  Ct.  435,  42  L.  Ed. 
865;  Merchants'  &  Manufacturers'  Nat.  Bank  v.  Pennsylvania,  167 
U.  S.  461,  17  Sup.  Ct.  829,  42  L.  Ed.  236. 

ze  Wilkes  County  v.  Coler,  180  U.  S.  506,  21  Sup.  Ct.  458,  45  L.  Ed. 
642;  Stanly  Co.  v.  Same,  190  U.  S.  437,  23  Sup.  Ct.  811,  47  L.  Ed. 
1126. 

27  Balkam  v.  Iron  Co.,  154  U.  S.  177,  14  Sup.  Ct.  1010,  38  L.  Ed. 
953;   Dibble  y.  Land  Co.,  163  U.  S.  63,  16  Sup.  Ct.  939,  41  L.  Ed.  72. 

28  Claiborne  Co.  v.  Brooks,  111  U.  S.  400,  4  Sup.  Ct.  489,  28  L.  Ed. 
470;  Forsyth  v.  City  of  Hammond,  166  U.  S.  506,  17  Sup.  Ct.  665,  41 
L.  Ed.  1095;   Thompson  v.  Searcey  Co.,  57  Fed.  1030,  6  C.  C.  A.  674. 

29  Hill  v.  Hite,  85  Fed.  268,  29  C.  C.  A.  549;  Bucher  v.  Railroad 
Co.,  125  U.  S.  555,  8  Sup.  Ct.  974,  31  L.  Ed.  795. 

so  May  v.  Tenney,  148  U.  S.  60,  13  Sup.  Ct.  491,  37  L.  Ed.  368. 


14  FEDERAL  JURISDICTION.  (Ch.  1 

utes  or  Constitution — in  other  words,  when  a  federal  question 
is  involved.81  In  such  cases  the  federal  courts  must  act 
upon  their  own  convictions. 

For  the  same  reason,  when  a  state  court  has  upheld  the 
validity  of  municipal  bonds  issued  under  a  state  statute,  and 
rights  have  been  acquired  on  the  faith  of  such  decision,  fed- 
eral courts  will  not  feel  bound  by  subsequent  decisions  deny- 
ing the  validity  of  such  bonds,  but  will  follow  the  first  deci- 
sion.32 

So,  if  such  bonds  when  issued  had  not  been  pronounced  in- 
valid by  the  state  court,  the  federal  court  will  determine  their 
validity  for  itself,  but  it  will  follow  the  last  state  decision  up- 
holding the  bonds.33 

In  considering  the  validity  of  municipal  bonds,  state  de- 
cisions made  before  the  bonds  are  issued  will  be  followed.84 

But  a  change  in  state  decisions  will  be  considered  binding 
only  as  to  bonds  thereafter  issued,  and  a  state  decision  after 
their  issue  which  affects  their  validity  is  not  binding.86 

In  the  interesting  case  of  Burgess  v.  Seligman  3e  similar 
principles  were  applied  as  to  the  liability  of  a  stockholder 
under  a  state  statute.  When  the  federal  court  has  construed 
such  a  statute  in  the  absence  of  any  decision  by  the  state 
court,  it  will  not  feel  bound  to  change  its  decision  on  account 
of  a  subsequent  state  court  decision  construing  the  statute 
differently. 


3i  Scott  v.  McNeal,  154  TJ.  S.  34,  14  Sup.  Ct.  1108,  38  L.  Ed.  896; 
Central  Trust  Co.  v.  Railway  Co.  (C.  C.)  82  Fed.  1. 

8  2  Gelpcke  v.  Dubuque,  1  Wall.  175,  17  L.  Ed.  520. 

s»  Folsom  v.  Township  Ninety-Six,  159  U.  S.  611,  16  Sup.  Ct.  174, 
40  L.  Ed.  278;  Wilkes  County  v.  Coler,  180  U.  S.  506,  21  Sup.  Ct. 
458,  45  L.  Ed.  642;  Wade  v.  Travis  Co.,  174  U.  S.  499,  19  Sup.  Ct.  715, 
43  L.  Ed.  1000. 

s*  Lytle  v.  Lansing,  147  U.  S.  59,  13  Sup.  Ct.  254,  37  L.  Ed.  78. 

so  Douglass  v.  Pike  Co.,  101  U.  S.  677,  25  L.  Ed.  968;  Knox  Co. 
v.  Bank,  147  U.  S.  91,  13  Sup.  Ct.  267,  37  L.  Ed.  93;  Loeb  v.  Trus- 
tees, 179  U.  S.  472,  21  Sup.  Ct.  174,  45  L.  Ed.  280. 

se  107  U.  S.  20,  2  Sup.  Ct.  10,  27  L.  Ed.  359. 


§  10)  CONTRACT  OR  PERSONAL  RELATIONS.  15 


STATE  LAW  OF  TITLE  TO  REAL  PROPERTY. 

9.   The  federal  courts  follow  the  state  decisions  in  relation  to 
title  to  real  property. 

This  is  because  the  state  decisions  establish  rules  of  prop- 
erty on  which  titles  and  rights  are  acquired,  and  to  unsettle 
them  would  introduce  uncertainty  too  great  to  be  endured.37 
They  do  not,  however,  feel  bound  to  follow  the  state  decisions 
as  to  the  construction  of  a  particular  devise  not  depending 
on  any  general  settled  rule  of  property  in  the  state.8 • 


CONTRACT  OR  PERSONAL  RELATIONS. 

10.   They  follow  the  state  decisions  in  general,  in  matters  of 
contract  or  in  personal  relations. 

Hence  the  state  decisions  are  adopted  as  to  the  validity  of 
a  state  marriage  and  the  rights  of  married  women.39  Also 
in  questions  whether  contracts  made  within  the  state  and 
operating  therein  are  in  accordance  with  public  policy.*0 

st  Suydam  v.  Williamson,  24  How.  427,  15  L.  Ed.  978;  Bendey  v. 
Townsend,  109  U.  S.  665,  3  Sup.  Ct.  482,  27  L.  Ed.  1065;  LOWNDES 
v.  HUNTINGTON,  153  U.  S.  1,  14  Sup.  Ct.  758,  38  L.  Ed.  615;  St. 
Anthony  Falls  Water  Power  Co.  v.  Commissioners,  168  U.  S.  349,  18 
Sup.  Ct.  157,  42  L.  Ed.  497. 

as  Barber  v.  Railroad  Co.,  166  U.  S.  83,  17  Sup.  Ct.  488,  41  L.  Ed. 
925. 

so  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Slaughter  v. 
Glenn,  98  U.  S.  242,  25  L.  Ed.  122;  Canal  Bank  of  New  Orleans  v. 
Partee,  99  U.  S.  325,  25  L.  Ed.  390. 

40  Missouri,  K.  &  T.  Trust  Co.  v.  Krumseig,  172  U.  S.  351,  19  Sup. 
Ct.  179,  43  L.  Ed.  474;  Hartford  Fire  Ins.  Co.  v.  Railroad  Co.,  175 
U.  S.  91,  20  Sup.  Ct.  33,  44  L.  Ed.  84. 


16  FEDERAL  JURISDICTION.  (Ch.  1 


NOT  BOUND  BY  STATE  LAW  IN  QUESTIONS  OF  GENERAL 
OR  COMMERCIAL  CHARACTER. 

11.  In  questions  of  a  general  or  commercial  character  the  fed- 
eral courts  do  not  feel  bound  by  the  state  decisions,  but 
act  upon  their  own  convictions  of  what  is  right. 

This  right  in  a  federal  court  of  deciding  for  itself  questions 
of  general  law  was  laid  down  as  to  questions  arising  under 
the  law  merchant  in  the  leading  case  of  Swift  v.  Tyson.41 
Such  a  right  would  appear  essential  in  order  for  a  federal 
court  to  guard  the  interests  of  nonresidents  against  the  pos- 
sibility of  state  decisions  laying  down  rules  which  would  work 
in  favor  of  the  resident.  The  law  merchant  being  common 
to  all  civilized  nations,  a  federal  court  could  not  tie  itself 
down  to  the  theory  of  treating  it  as  a  local  rule  of  action.42 

The  construction  of  insurance  contracts  is  also  a  question 
of  general  law,  as  to  which  the  federal  courts  feel  at  liberty 
to  form  their  own  opinions.48 

The  liability  of  common  carriers,  the  validity  of  stipulations 
in  their  bills  of  lading,  the  measure  of  damages  in  suits  against 
them,  are  also  matters  of  general  interest,  as  to  which  the 
federal  courts  act  independently,  except  in  so  far  as  such  mat- 
ters are  regulated  by  state  statute.44 

The  federal  courts  also  consider  the  law  of  master  and 
servant  as  one  of  general  interest,  and  not  of  mere  local  con- 

«i  1G  Pet.  1,  10  L.  Ed.  865. 

4*  Brooklyn  City  &  N.  R.  Co.  v.  Bank,  102  U.  S.  14,  26  L.  Ed.  61; 
Phipps  v.  Harding,  70  Fed.  468,  17  C.  C.  A.  203,  30  L.  R.  A.  513;  Dy- 
gert  v.  Trust  Co.,  94  Fed.  913,  37  C.  C.  A.  389. 

«  Washburn  &  Moen  Mfg.  Co.  v.  Insurance  Co.,  179  U.  S.  1,  15,  21 
Sup.  Ct.  1,  45  L.  Ed.  49. 

44  Myrick  v.  Railway  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425,  27  L.  Ed. 
325;  Lake  Shore  &  M.  S.  R.  Co.  v.  Prentice,  147  U.  S.  101,  13  Sup. 
Ct.  261,  37  L.  Ed.  97;  Hartford  Fire  Ins.  Co.  v.  Railroad  Co.,  175  U. 
S.  91,  98,  20  Sup.  Ct.  33,  44  L.  Ed.  84;  New  York  Cent.  R.  Co.  v. 
Lockwood,  17  Wall.  357,  21  L.  Ed.  627. 


§  11)  GENERAL   OR   COMMERCIAL   QUESTIONS.  17 

cern ;  and  hence  they  decide  for  themselves  whether  a  given 
case  is  a  case  of  fellow  service  or  of  liability,  regardless  of 
the  state  decisions.  As  the  federal  decisions  on  the  subject 
differ  widely  from  those  of  some  states,  this  makes  the  selec- 
tion of  the  forum  a  very  important  step  in  many  of  these 
cases.46 

4  6  Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  13  Sup.  Ct.  914, 
37  L.  Ed.  772. 

Hughes  Fed.  Jub. — 2 


18  DISTRICT  COURT — CRIMINAL  JURISDICTION.  (Cb-  2 


CHAPTER  H. 

THE  DISTRICT  COURT— ITS  CRIMINAL  JURISDICTION  AND 

PRACTICE. 

12.  The  Federal  Judicial  System. 

13.  The  District  Court. 

14.  Criminal  Jurisdiction  of  the  District  Courts. 

15.  Criminal  Procedure. 

16.  Procedure  by  Complaint. 

17.  United  States  Commissioners. 

18.  Place  of  Trial — Warrant  of  Removal. 

19.  Same — Proper  Place. 

THE  FEDERAL  JUDICIAL  SYSTEM. 

IS.  The  Judicial  power  of  the  United  States  is  Tested  in  one 
Supreme  Court,  established  by  the  Constitution,  and 
various  inferior  courts  organized  by  Congress  under 
the  authority  of  the  Constitution. 

The  Original  United  States  Courts,  and  Their  Evolution  into 
the  Present  System. 

Article  3,  §  1,  of  the  federal  Constitution,  provides  that  the 
judicial  power  of  the  United  States  shall  be  vested  in  one  Su- 
preme Court,  and  in  such  inferior  courts  as  Congress  may  from 
time  to  time  ordain  and  establish.  It  thus  appears  that  the 
only  court  expressly  established  by  the  Constitution  itself  is 
the  Supreme  Court.  The  others  are  all  creatures  of  con- 
gressional action. 

Acting  under  this  authority  in  the  Constitution,  Congress, 
by  the  judiciary  act  of  1789,  established  the  first  federal  courts, 
and  distributed  the  jurisdiction  among  them.  They  divided 
the  United  States,  as  then  constituted,  into  judicial  districts, 
no  district  containing  more  than  one  state,  and  established  in 
each  district  a  district  court  and  a  circuit  court.  Since  then, 
as  the  country  grew,  additional  districts  and  circuits  have  been 


§  12)  THE    FEDERAL   JUDICIAL   SYSTEM.  19 

established.  This  original  act,  with  subsequent  enlargements, 
now  constitutes  section  530  of  the  United  States  Revised  Stat- 
utes.1 These  district  and  circuit  courts  were  given  by  the 
original  act  of  1789  all  of  the  original  jurisdiction  which  the 
United  States  courts  then  exercised,  except  the  small  amount 
conferred  upon  the  Supreme  Court.  They  still  remain  the 
courts  of  the  United  States  in  which  the  great  mass  of  the  pro- 
fession is  mainly  interested.  Until  1891  the  circuit  court  had 
some  appellate  supervision  over  the  district  court. 

Under  the  original  act,  a  judge,  known  as  the  district  judge, 
was  to  be  chosen,  who  was  to  hold  both  the  district  court  and 
the  circuit  court  in  the  district  over  which  he  presided.2  The 
district  judge,  however,  could,  of  course,  not  hold  the  circuit 
court  in  cases  of  appeals  from  his  own  decisions  in  the  district 
court.  In  order  to  provide  for  this  case,  and  also  for  holding 
the  circuit  court  in  cases  of  special  interest,  the  nation  was 
divided  into  larger  units,  known  as  circuits,  and  one  justice 
of  the  United  States  Supreme  Court  was  assigned  to  each  of 
these  circuits.  This  Supreme  Court  justice  could  hold  the  cir- 
cuit court  of  any  district  contained  in  his  circuit.  He  could 
sit  with  the  district  judge,  or,  in  cases  of  appeals  from  the  dis- 
trict court  to  the  circuit  court,  he  it  was  who  heard  and  dis- 
posed of  those  appeals.  This  continued  to  be  the  system  until 
just  after  the  Civil  War,  when  an  additional  judge,  known  as 
a  circuit  judge,  was  provided  for  each  circuit;  the  main  object 
being  to  relieve  the  justices  of  the  Supreme  Court  from  the 
labor  of  holding  the  circuit  court,  as  the  growth  of  business 
in  the  Supreme  Court  had  rendered  it  impracticable  for  them 
to  continue  to  do  much  circuit  court  work.  Then  by  the  act 
of  March  3,  1891,  establishing  the  circuit  courts  of  appeals,3 
additional  circuit  judges  were  established,  and  by  various 
special  acts  some  circuits  have  more  than  two  circuit  judges. 
There  are  also  many  courts  of  special  jurisdiction  which  have 

i  1  TJ.  S.  Comp.  St.  1901,  p.  316. 

2  Section  551,  Rev.  St.  [1  TJ.  S.  Comp.  St.  1901,  p.  446]. 

s  1  U.  S.  Comp.  St.  1901,  p.  547. 


20  DISTRICT   COURT — CRIMINAL   JURISDICTION.  (Ch-  2 

been  established  since.  One  of  these  is  the  court  of  claims, 
established  in  1855.4  Another  court  of  considerable  impor- 
tance is  the  court  of  private  land  claims,  established  by  act  of 
March  3,  1891. 6  There  are  also  the  courts  of  the  District  of 
Columbia  and  the  courts  of  the  territories,  and  then  there  are 
the  courts  of  appellate  jurisdiction,  consisting  of  the  circuit 
courts  of  appeals,  established  by  the  act  of  March  3,  1891,6  and 
the  Supreme  Court,  which,  as  already  mentioned,  was  estab- 
lished by  the  Constitution  itself. 

It  will  now  be  necessary  to  review  the  organization,  juris- 
diction, and  practice  of  these  several  courts. 


THE  DISTRICT  COURT. 

13.  The  district  courts  are  United  States  Courts  of  original 
jurisdiction,  each  having  territorial  supervision  ove* 
an  area  known  as  a  judicial  district,  and  held  hy  a 
judge  known  as  a  district  judge. 

The  District  Court,  and  Its  Personnel 

This  court  is  held  by  the  district  judge,  who  is  required  to 
live  within  his  district.  The  districts  being  defined  largely  b) 
state  lines,  the  territorial  jurisdiction  of  the  district  courts 
follows  the  lines  as  laid  down  by  the  act  of  the  states.  When 
two  states  agree  as  to  a  boundary  line  which  has  been  in  dis- 
pute, and  the  effect  of  such  agreement  is  to  throw  into  one 
state  territory  which  had  been  in  another,  the  corresponding 
district  court  extends  over  such  new  territory.7 

The  statutes  contain  various  provisions  for  holding  the  dis- 
trict court,  if  for  any  reason  the  district  judge  of  that  district 
is  prevented  from  sitting.     These  provisions  will  be  found  in 

*  Sections  1049-1093,  Rev.  St.  [1  U.  S.  Comp.  St.  1901,  p.  729  et 
aeq.]. 

»  1  U.  S.  Comp.  St.  1901,  p.  764. 
«  1  U.  S.  Comp.  St.  1901,  p.  546. 
t  In  re  Devoe  Mfg.  Co.,  108  U.  S.  401,  2  Sup.  Ct.  894,  27  L.  Ed.  764. 


§  13)  THE   COURT.  21 

sections  587  to  603  of  the  United  States  Revised  Statutes.8 
The  first  four  of  these  statutes  apply  in  terms  only  to  cases 
of  disability  of  the  district  judge,  and  apparently  do  not  apply 
to  a  case  where  there  is  a  vacancy  in  the  office.9  The  only 
provisions  expressly  applying  to  vacancies  are  sections  602 
and  603.  Apparently,  however,  the  language  of  section  592, 
which  allows  the  designation  of  another  judge  in  case  of  ac- 
cumulation of  business,  would  permit  such  designation,  not 
only  when  business  has  accumulated  on  account  of  an  unusual 
press  of  litigation,  or  on  account  of  disability,  but  also  where 
there  is  a  vacancy.  In  any  event,  if  the  appointment  of  another 
judge  to  hold  court  in  case  of  accumulation  of  business  is  made, 
and  there  is  nothing  on  the  record  to  show  that  there  is  an 
actual  vacancy  in  the  office,  the  act  of  a  judge  so  holding  court 
could  not  be  questioned,  for  he  would  be  a  judge  de  facto, 
and  his  acts  would  be  binding  upon  litigants.10  Sections  591, 
592,  and  593,  allow  the  additional  judge  so  designated  to  hold 
not  only  the  district  courts,  but  the  circuit  courts. 

There  is  also  a  provision  contained  in  section  601  of  the  Re- 
vised Statutes  providing  for  the  case  where  a  district  judge 
is  so  interested  in  a  suit  that  it  would  be  improper  for  him  to 
sit. 

General  Nature  of  the  Jurisdiction  of  the  District  Court. 

As  a  rule,  the  jurisdiction  conferred  upon  the  district  court 
is  that  of  an  exceptional  or  special  character;  the  great  mass 
of  civil  controversies  of  which  the  federal  courts  are  given 
original  jurisdiction  being  conferred  upon  the  circuit  court. 
The  district  court  jurisdiction,  however,  though  special  in  its 
nature,  is  very  extensive,  and  covers  cases  cognizable  both  in 
criminal  courts,  the  common-law  courts,  and  the  chancery 
courts,  to  say  nothing  of  the  courts  of  extraordinary  jurisdic- 
tion,  like  the  admiralty   and   bankruptcy   courts.     The   main 

•  1  U.  S.  Comp.  St.  1901,  pp.  479-484. 

»  Ball  v.  U.  S.,  140  U.  S.  118,  11  Sup.  Ct.  761,  35  L.  Ed.  377. 

io  McDowell  v.  U.  S.,  159  U.  S.  596,  16  Sup.  Ct.  Ill,  40  L.  Ed.  271. 


22  DISTRICT    COURT — CRIMINAL  JURISDICTION.  (Cb.  2 

subjects  of  the  jurisdiction  of  the  district  court  are  enumerated 
in  section  563  of  the  United  States  Revised  Statutes,11  though 
there  are  a  great  many  subjects  of  jurisdiction  cognizable  by 
it  under  special  statutes,  and  not  enumerated  in  that  section. 

CRIMINAL    JURISDICTION    OF    THE    DISTRICT    COURTS. 

14.  The  first  clause  of  section  563  of  the  Revised  Statutes 
gives  the  district  courts  jurisdiction  of  all  crimes  and 
offenses  cognizahle  under  the  authority  of  the  United 
States  committed  within  their  respective  districts  or 
upon  the  high  seas,  the  punishment  of  which  is  not 
capital,  except  in  certain  unimportant  cases  mentioned 
in  section  5412  of  the  United  States  Revised  Statutes. 

As  there  are  but  few  capital  offenses  under  the  federal  stat- 
utes, this  clause  gives  the  district  court  jurisdiction  of  nearly 
all  offenses  punishable  by  the  laws  of  the  United  States.  In 
this  connection  it  must  be  remembered  that  there  is  no  such 
thing  as  a  common-law  offense  against  the  United  States, 
but  offenses  are  statutory  only;  and,  in  order  to  sustain  a 
prosecution  under  this  section,  some  act  of  Congress  other  than 
section  563  must  be  specified  which  creates  such  an  offense.12 

The  principal  crimes  against  the  United  States  are  contained 
in  title  70  and  title  71  of  the  United  States  Revised  Statutes.13 
There  are,  however,  many  offenses  against  the  United  States 
which  are  not  set  out  in  this  title,  and  which  are  scattered 
through  the  federal  statutes,  but  as  a  rule  they  are  unim- 
portant. 

As  treason,  murder,  and  the  offenses  named  in  section  5345, 
United  States  Revised  Statutes,  are  punishable  by  death,  they 
do  not  come  within  the  jurisdiction  of  the  district  court.  All 
other  crimes  against  the  existence  of  the  government  contained 

m  U.  S.  Comp.  St.  1901,  p.  455. 

12  Pettibone  v.  U.  S.,  148  U.  S.  197,  13  Sup.  Ct.  542,  37  L.  Ed.  419; 
U.  S.  v.  Eaton,  144  TJ.  S.  077,  12  Sup.  Ct.  704,  36  L.  Ed.  591. 
is  3  U.  S.  Corup.  St.  1901,  p.  3019  et  seq. 


§  14)  JURISDICTION   OF  THE   COURTS.  23 

in  chapter  2  of  title  70  are  cognizable  by  the  district  court, 
and  also  all  crimes  mentioned  in  chapter  3,  with  the  above 
exceptions.  It  will  be  observed  that  most  of  these  statutes 
punishing  crimes  against  the  person  expressly  apply  to  lands 
or  reservations  under  the  exclusive  jurisdiction  of  the  United 
States,  or,  in  case  of  offenses  on  the  water,  to  such  waters  as 
are  not  only  within  the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  but  are  also  out  of  the  jurisdiction  of  any 
particular  state.  Under  this  provision,  crimes  of  this  nature 
committed  in  a  harbor,  or  in  a  body  of  water  bounded  on  each 
side  by  the  same  state,  are  not  cognizable  by  the  federal  courts, 
but  the  punishment  of  such  offenses  is  left  to  the  state  courts.14 
It  has  also  been  held  that  the  statutes  giving  the  federal  courts 
jurisdiction  over  offenses  committed  on  the  high  seas  apply 
to  the  Great  Lakes,  the  Supreme  Court  holding  that  in  the 
proper  sense  of  the  term  the  Great  Lakes  are  high  seas,  just 
as  much  as  the  Mediterranean  or  the  Baltic.  This  was  decided 
in  the  case  of  U.  S.  v.  Rodgers,15  which  was  a  case  where  the 
offense  was  committed  in  1887,  and  the  decision  was  rendered  in 
1893.  Prior  to  the  decision  in  that  case,  however,  Congress, 
by  the  act  of  September  4,  1890, ie  had  expressly  provided  for 
an  extension  of  the  criminal  jurisdiction  of  the  federal  courts 
over  the  Great  Lakes  and  their  connecting  waters. 

It  is  impossible  within  the  limits  of  this  treatise  to  discuss 
the  statutes  defining  the  various  crimes  against  the  LTnited 
States.  It  may  be  said  in  general  that  it  is  not  the  national 
policy  to  create  offenses  cognizable  by  the  United  States  courts, 
except  in  so  far  as  it  may  be  necessary  to  see  to  the  proper  exe- 
cution of  the  federal  laws.  The  great  mass  of  offenses  are 
offenses  against  the  states,  and  not  the  United  States ;  and  the 

i*  U.  S.  v.  ROGERS  (D.  C.)  46  Fed.  1 ;  SAME  v.  RODGERS,  150  U. 
S.  249,  14  Sup.  Ct.  109,  37  L.  Ed.  1071 ;  Ex  parte  Ballinger  (D.  C.)  5 
Hughes,  3S7,  88  Fed.  781;  U.  S.  v.  Peterson  (D.  C.)  64  Fed.  145; 
U.  S.  v.  Bevans,  3  Wheat.  336,  4  L.  Ed.  404. 

is  U.  S.  v.  RODGERS,  150  U.  S.  249,  14  Sup.  Ct  109,  37  L.  Ed. 
1071. 

i«  TJ.  S.  Comp.  St.  1901,  p.  3627. 


24  DISTRICT   COURT — CRIMINAL  JURISDICTION.  (Oil.  2 

offenses  against  the  latter  relate  merely  to  offenses  on  the  high 
seas  which  would  not  fall  under  the  authority  of  any  single 
state,  to  offenses  committed  on  lands  under  the  exclusive  juris- 
diction of  the  United  States,  like  forts  and  military  reserva- 
tions, and  to  offenses  against  the  customs  and  revenue  laws, 
the  pension  laws,  the  postal  laws,  and  the  national  banking  laws. 
It  is  essential  to  the  proper  administration  of  the  government 
that  these  offenses  should  be  cognizable  by  the  federal  courts. 
Under  article  1,  §  8,  cl.  17,  of  the  Constitution,  Congress  is 
given  the  power  of  exclusive  legislation  over  the  seat  of  gov- 
ernment, and  over  all  places  purchased  by  consent  of  the 
Legislature  of  the  state  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dockyards,  and  all  other 
needful  buildings.  Under  this  clause  the  jurisdiction  of  the 
United  States  courts  over  crimes  committed  on  such  places  is 
necessarily  exclusive,17  but  even  under  this  clause  the  letter 
of  the  Constitution  is  followed,  and,  in  case  of  land  purchased 
by  the  United  States  without  the  assent  of  the  state,  the  juris- 
diction is  not  necessarily  exclusive.18 

In  speaking  of  offenses  exclusively  cognizable  by  the  United 
States  courts,  the  offense,  in  so  far  as  it  is  an  offense  against 
the  federal  law,  is  necessarily  exclusively  punishable  by  the 
federal  courts.19  It  must,  however,  be  remembered  that  in 
many  cases  the  same  act  or  state  of  facts  may  be  an  offense  both 
against  the  state  laws  and  the  federal  laws,  and  in  such  case  the 
offender  may  be  prosecuted  in  both  courts,  though  the  first 
court  that  arrests  him  would  not  permit  interference  by  the 
other  court.20     The  offenses  created  and  defined  by  the  federal 

"  Sharon  v.  Hill  (C.  C.)  24  Fed.  726;  Ft.  Leavenworth  R.  Co.  v. 
Lowe,  114  U.  S.  525,  5  Sup.  Ct.  995,  29  L.  Ed.  264. 

is  U.  S.  v.  Penn  (C.  C.)  48  Fed.  669. 

is  In  re  Loney  (C.  C.)  38  Fed.  101;  Thomas  v.  Loney,  134  U.  S. 
372,  10  Sup.  Ct.  584,  33  L.  Ed.  949;  Fitzgerald  v.  Green,  134  U.  S. 
377,  10  Sup.  Ct.  586,  33  L.  Ed.  951;  In  re  Thomas,  87  Fed.  453,  31  C. 
C.  A.  80;  Ohio  v.  Thomas,  173  U.  S.  276,  19  Sup.  Ct.  453,  43  L.  Ed. 
699;   In  re  Waite  (D.  C.)  81  Fed.  359. 

20  Section  5328,  Rev.  St.  [3  U.  S.  Comp.  St.  1901,  p.  3622];   Cross 


§§  15-17)  CRIMINAL   PROCEDURE.  25 

statutes  in  reference  to  federal  buildings  or  other  lands  owned 
by  the  United  States  are  substantially  the  usual  offenses  pun- 
ishable in  the  state  courts.  By  way  of  extra  precaution,  it 
is  provided  by  section  5391 21  that  anything  which  is  an  offense 
under  the  law  of  the  state  in  which  such  place  is  situated  shall 
be  an  offense  against  the  United  States  and  punishable  as  it 
is  by  the  state  law  in  force  at  the  time  of  the  enactment  of 
that  section,  which  was  on  March  3,  1825.22 

CRIMINAL  PROCEDURE. 

15.  Criminal  proceedings  in  the  federal  conrts  are  institnted 

(a)  By  complaint  before  an  examining  officer,  looking  to  an 

indictment; 

(b)  By  indictment  or  information,  as  the  initial  step. 

PROCEDURE    BY    COMPLAINT. 

16.  It    is    provided    that,    upon    complaint    under    oath    before 

them,  a  justice  or  judge  of  the  United  States,  a  United 
States  commissioner,  and  certain  state  officers  of  the 
state  wherein  the  offender  is  found,  may  have  the  of- 
fender arrested  and  imprisoned  or  bailed,  as  the  case 
may  be,  for  trial  before  such  court  of  the  United  States 
as  by  law  has  cognizance  of  the  offense,  under  proce- 
dure agreeable  to  the  usual  mode  of  process  against 
offenders  in  the  state  in  which  the  procedure  is  being 
conducted. 

UNITED  STATES   COMMISSIONERS. 

17.  The   officers   before   whom    offenders    are   usually   brought 

under  this  procedure  are  the  United  States  commission- 
ers. These  officers  have  various  powers,  similar  on  the 
criminal  side  to  the  ordinary  magistrates  in  the  judi- 
cial systems  of  the  states. 

v.  North  Carolina,  132  U.  S.  131,  10  Sup.  Ct.  47,  33  L.  Ed.  287;  Gross- 
ley  v.  California,  168  U.  S.  640,  18  Sup.  Ct.  242,  42  L.  Ed.  610. 

2i  3  U.  S.  Comp.  St.  1901,  p.  3051. 

22  u.  S.  v.  Paul,  6  Pet.  141,  8  L.  Ed.  348;  U.  S.  v.  Barnaby  (C.  C.) 
51  Fed.  20. 


26  DISTRICT   COURT — CRIMINAL  JURISDICTION.  (Cb.  2 

Section  1014,  Rev.  St.,28  also  provides  that  in  such  case  the 
procedure  shall  be  agreeably  to  the  usual  mode  of  process 
against  offenders  in  such  state.  The  usual  procedure  under 
this  section  is  by  complaint  on  oath  before  some  of  the  above 
officers.  The  fourth  amendment  to  the  Constitution  provides 
that  no  warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly  describing  the 
place  to  be  searched,  and  the  persons  or  things  to  be  seized. 
{ Under  these  constitutional  and  statutory  provisions,  it  has  been 
held  that  a  complaint  must  be  on  oath,  of  personal  knowledge, 
and  not  merely  on  an  oath  or  affirmation  of  mere  belief.24 
The  procedure  in  such  case  follows  the  usual  practice  of  the 
state,  as  expressly  required  by  the  statute,  and  the  officer  is- 
suing the  warrant  proceeds  as  the  corresponding  state  officer 
would  proceed.26  The  procedure  by  indictment  or  information, 
in  cases  where  an  information  lies,  is  also  very  common  and 
well  known.28 

The  Warrant. 

On  complaint  duly  sworn  to  as  above  described,  the  officer 
issues  a  warrant  of  arrest  to  bring  the  prisoner  before  him  at 
a  given  time  and  place.  It  is  not  necessary,  however,  that  the 
warrant  should  be  returned  before  the  officer  issuing  it,  for 
by  the  act  of  August  18,  1894,27  it  must  be  returned  by  the 
marshal  before  the  nearest  judicial  officer  who  has  jurisdiction 
for  a  hearing,  commitment,  or  taking  of  bail ;  the  object  of 
this  act  being  to  prevent  excessive  costs  by  having  commis- 
sioners issue  warrants  for  parties  at  great  distances,  thereby 
multiplying  both  commissioner's  and  marshal's  fees. 

The  warrant  must,  as  required  by  amendment  4  to  the  Con- 

23  1  U.  S.  Comp.  St.  1901,  p.  716. 

24  u.  S.  v.  Burr,  Fed.  Cas.  No.  14,692;  U.  S.  v.  Collins  (D.  C.)  79 
Fed.  65;   Eice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  406,  45  L.  Ed.  577. 

25  U.  S.  v.  Sauer  (D.  C.)  73  Fed.  671;  U.  S.  v.  Dunbar,  83  Fed.  151, 
27  C.  C.  A.  488. 

26  u.  S.  v.  Kilpatrick  (D.  C.)  16  Fed.  765. 

27  1  U.  S.  Comp.  St.  1901,  p.  717. 


§§  15-17)  CRIMINAL   PROCEDURE.  27 

stitution,  particularly  describe  the  person  to  be  arrested.  Con- 
sequently a  warrant  not  conforming  to  this  requirement  would 
be  illegal.  As  an  illustration,  in  the  case  of  West  v.  Cabell 28 
the  warrant  was  against  James  West.  Under  it  the  officer 
arrested  Vandy  West.  The  warrant  was  held  to  be  void,  even 
though  testimony  was  adduced  to  show  that  Vandy  West  was 
really  the  man  who  was  in  the  mind  of  the  commissioner  when 
the  warrant  was  issued. 

A_seal  is  not  essential  to  the  validity  of  the  warrant.  If 
there  is  no  statute  requiring  it,  and  the  officer  issuing  it  has 
no  seal,  but  it  is  merely  signed,  the  warrant  is  still  valid.29 

United  States  Commissioners. 

When  the  warrant  has  been  issued  and  the  accused  arrested,  \ 
he  is  brought  before  the  committing  officer  for  a  preliminary' 
examination.  The  officer  before  whom  he  is  usually  brought 
in  such  case  is  now  known  as  a  United  States  commissioner. 
By  the  act  of  May  28, 1896,30  the  office  of  circuit  court  commis-\ 
sioner  was  abolished,  and  that  of  United  States  commissioner' 
established.  This  officer  has  various  powers,  similar  on  the 
civil  side  to  those  of  a  notary  public,  and  on  the  criminal  side 
to  those  of  a  magistrate.  His  powers  are  summarized  in  the 
case  of  U.  S.  v.  Allred  31  as  follows:  "The  duties  of  these 
officers  are  prescribed  by  law,  and  they  are,  in  general,  to  issue 
warrants  for  offenses  against  the  United  States ;  to  cause  the 
offenders  to  be  arrested  and  imprisoned,  or  bailed,  for  trial, 
and  to  order  the  removal  of  offenders  to  other  districts  (Rev. 
St.  §  1014  [U.  S.  Comp.  St.  1901,  p.  716]) ;  to  hold  to  security 
of  the  peace  and  for  good  behavior  (section  727  [U.  S.  Comp. 
St.  1901,  p.  581]);  to  carry  into  effect  the  award  or  arbitra- 
tion, or  decree  of  any  consul  of  any  foreign  nation ;  to  sit 
as  judge  or  arbitrator  in  such  differences  as  may  arise  between 
the  captains  and  crews  of  any  vessels  belonging  to  the  nations 

28  153  U.  S.  78,  14  Sup.  Ct.  752,  38  L.  Ed.  643. 

2»  Starr  v.  U.  S.,  153  U.  S.  614,  14  Sup.  Ct.  919,  38  L.  Ed.  841. 

so  1  U.  S.  Comp.  St.  1901,  p.  499. 

si  1^5  U.  S.  591,  15  Sup.  Ct.  231,  39  L.  Ed.  273. 


28  DISTRICT  COURT — CRIMINAL  JURISDICTION.  (Cb.  2 

whose  interests  are  committed  to  his  charge;    and  to  enforce 
obedience  by  imprisonment  until  such   award,  arbitration,  or 
decree  is  complied  with  (section  728) ;   to  take  bail  and  affida- 
vits in  civil  causes  (section  945  [U.  S.  Comp.  St.  1901,  p.  691]) ; 
to  discharge  poor  convicts  imprisoned  for  nonpayment  of  fines 
(section  1042  [U.  S.  Comp.  St.  1901,  p.  721]);    to  take  oaths 
and  acknowledgments  (section  1778    [U.  S.  Comp.  St.  1901, 
p.  1211]);  to  institute  prosecutions  under  the  laws  relating  to 
crimes  against  the  elective  franchise,  and  civil  rights  of  citi- 
zens, and  to  appoint  persons  to  execute  warrants  thereunder 
(sections  1982-1985  [U.  S.  Comp.  St.  1901,  pp.  1264,  1265]); 
to  issue  search  warrants  authorizing  internal  revenue  officers 
to  search  premises,  where  a  fraud  upon  the  revenue  has  been 
committed  (section  3462   [U.  S.  Comp.   St.  1901,  p.  2283]); 
to  issue  warrants  for  deserting  foreign  seamen  (section  5280 
[U.  S.  Comp.  St.  1901,  p.  3598]);  to  summon  masters  of  ves- 
sels to  appear  before  him  and  show  cause  why  process  should 
not  issue  against  such  vessel  (section  4546  [U.  S.  Comp.  St. 
1901,  p.  3087]);    to  issue  warrants  for  and  examine  persons 
charged  with  being  fugitives  from  justice  (sections  5270  and 
5271  [U.  S.  Comp.  St.  1901,  pp.  3591,  3593]);    and  to  take 
testimony  and  proofs  of  debt  in  bankruptcy  proceedings  (sec- 
tions 5003  and  5076)." 

His  duties  under  section  1014  are  assimilated  to  those  of  a 
state  committing  magistrate,  and  in  holding  the  preliminary 
examination  of  the  accused  he  acts  as  a  state  magistrate  would 
act  under  the  state  practice.32  In  this  respect,  however,  he  is 
in  no  sense  holding  a  court  of  the  United  States,  but  is  acting 
simply  as  a  committing  magistrate.33  As  the  Constitution  re- 
quires that  no  warrant  shall  issue  but  upon  probable  cause,  it 
becomes  his  duty,  in  holding  such  examination,  and  in  issuing 
the  warrant  in  the  first  instance,  to  examine  into  the  question 

32  u.  S.  v.  Martin  (D.  C.)  17  Fed.  150;  U.  S.  v.  Greene  (D.  C.)  100 
Fed.  941;  Greene  v.  Henkel,  183  U.  S.  249,  22  Sup.  Ct.  218,  46  L. 
Ed.  177. 

as  Todd  v.  U.  S.,  158  TJ.  S.  278,  15  Sup.  Ct.  889,  39  L.  Ed.  982. 


§§  15-17)  CRIMINAL   PROCEDURE.  29 

whether  there  is  probable  cause  to  believe  that  the  accused 
has  committed  any  offense.  In  making  this  inquiry,  he  may 
examine  into  the  facts,  and  in  fact  it  is  usually  necessary  for 
him  to  do  so,  in  order  to  decide  whether  the  prisoner  is  entitled 
to  bail.34  Under  section  1015  of  the  Revised  Statutes,  the 
prisoner  is  entitled  to  bail  in  all  except  capital  cases,  and  the 
United  States  commissioner  may  decide  whether  to  admit  him 
to  bail  or  not ;  and  this  he  may  do  either  when  holding  an  ex- 
amination under  a  warrant  issued  on  complaint,  or  when  the 
other  procedure  by  indictment  has  been  taken,  and  the  prisoner 
has  been  arrested  on  the  indictment.86  If  bail  is  wanted  in\ 
capital  cases,  the  commissioner  has  no  power  to  take  it,  but  in 
such  cases  only  some  federal  judge  has  the  power  to  take  bail.  J 

The  preliminary  examination  is  a  valuable  right,  and  the 
prisoner  can  have  it  either  on  prosecutions  instituted  by  com- 
plaint   or   by   indictment.36 

If  the  commissioner  thinks  that  there  is  probable  cause  to 
believe  that  the  accused  has  committed  the  crime  with  which 
he  it>  charged,  he  may  commit  him  for  trial,  a  writ  being  neces- 
sary in  such  case.37 

Under  the  sixth  amendment  to  the  Constitution,  the  accused  j 
is  entitled,  among  other  things,  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor.  Pursuant  to  this  provision, 
section  879  of  the  Revised  Statutes  S8  gives  the  commissioner 
who  holds  this  examination  the  right  to  require  the  defendant's 
witnesses,  in  case  of  offenses  on  the  high  seas  or  elsewhere 
within  the  admiralty  and  maritime  jurisdiction  of  the  United 
States,  to  be  recognized  to  appear  at  that  place  where  the  ac- 
cused will  need  their  testimony. 

34  U.  S.  v.  Smith  (C.  C.)  17  Fed.  510;  U.  S.  v.  Hughes  (D.  C.)  70 
Fed.  972. 

3  5  Tj.  S.  v.  Sauer  (D.  C.)  73  Fed.  671;  Hoeffner  v.  U.  S.,  87  Fed. 
185,  1005,  30  C.  C.  A.  610. 

3  6  u.  S.  v.  Farrington  (D.  C.)  5  Fed.  343. 

3  7  Erwin  v.  TJ.  S.  (D.  C.)  37  Fed.  470,  2  L.  R.  A.  229;  U.  S.  v. 
Harden  (D.  C.)  10  Fed.  802. 

as  l  U.  S.  Comp.  St.  1901,  p.  668. 


30  DISTRICT   COURT — CRIMINAL   JURISDICTION.  (Cll.  2 


PLACE  OF  TRIAL— "WARRANT  OF  REMOVAL. 

18.  To  insure  the  constitutional  guaranty  of  a  speedy  and 
public  trial  by  an  impartial  jury  of  the  state  and  dis- 
trict wherein  the  crime  shall  have  been  committed,  it 
is  provided  that,  where  an  offender  is  committed  in  any 
district  other  than  that  where  the  offense  is  to  be  tried, 
the  judge  of  the  district  where  he  is  committed  shall 
issue  a  warrant  to  remove  him  to  the  district  where 
the  trial  is  to  be  had. 


SAME— PROPER  PLACE. 

19.  'The  proper  place  for  the  trial  of  offenses  committed  with- 
in any  district  is  in  that  district,  and  the  proper  place 
for  the  trial  of  offenses  committed  on  the  high  seas  or 
outside  of  any  district  at  all  is  the  district  where  the 
offender  is  found  or  where  he  is  first  brought. 

Warrant  of  Removal. 

The  sixth  amendment  to  the  Constitution  provides  also  that 
the  accused  shall  enjoy  the  right  to  a  speedy  and  public  trial 
by  an  impartial  jury  of  the  state  and  district  wherein  the 
crime  shall  have  been  committed.  In  conformity  to  this  pro- 
vision, section  1014  also  provides  that,  where  an  offender  is 
committed  in  any  district  other  than  that  where  the  offense  is  to 
be  tried,  the  judge  of  the  district  where  he  is  committed  shall 
issue  a  warrant  to  remove  him  to  the  district  where  the  trial 
is  to  be  had.  This  warrant  of  removal  is  required  to  show 
on  its  face  that  such  a  trial  of  some  offense  is  to  be  had,  though 
it  is  not  very  technical  in  its  form.  For  instance,  in  the  case 
of  Horner  v.  U.  S.39  the  warrant  transferring  him  to  another 
district  stated  that  the  prisoner  was  to  be  tried  "on  such  counts 
of  the  indictment  as  he  can  be  legally  tried  on  in  said  district." 
There  was  at  least  one  count  in  the  indictment  which  showed 

»»  (D.  C.)  44  Fed.  G77;   143  U.  S.  207,  12  Sup.  Ct.  407,  36  L.  Ed.  126. 


§§  18-19)   PLACE  OF  TRIAL WARRANT  OF  REMOVAL.     31 

jurisdiction  in  the  court  of  the  district  to  try  him,  and  it  was 
held  that  the  warrant  was  sufficiently  definite. 

When  a  judge  is  requested  under  this  provision  to  issue 
such  a  warrant  of  transfer,  he  acts  not  merely  in  a  ministerial 
capacity,  but  in  a  judicial  one;  and  he  may  examine  into  the  | 
case,  certainly  so  far  as  to  inspect  the  proceedings  and  see  that j 
the  court  to  which  he  is  asked  to  move  the  prisoner  has  juris-y 
diction.  As  to  the  question  of  fact,  a  certified  copy  of  the  in- 
dictment is  prima  facie,  but  not  conclusive,  evidence,  and  would 
justify  him  in  sending  the  prisoner  on,  though  he  would  have 
the  right,  in  his  discretion,  to  hear  additional  evidence  if  he 
saw  fit.40  When  an  application  is  made  by  the  authorities  of 
another  district  to  a  judge  to  remove  the  prisoner  to  such 
district  for  trial,  it  ought  to  show  that  proceedings  have  been 
instituted  in  such  district.41  The  prisoner  is  entitled  to  no- 
tice of  the  time  when  the  judge  is  to  examine  into  the  question 
of  sending  him  to  another  district,  but  before  any  removal 
an  examination  or  an  indictment  in  one  of  the  two  districts  is 
necessary.42 

The  Place  of  Trial. 

Article  3,  §  2,  of  the  Constitution,  provides  that  the  trial 
shall  be  held  in  the  state  where  the  crime  shall  have  been  com- 
mitted, but  when  not  committed  within  any  state  the  trial  shall 
be  at  such  place  or  places  as  the  Congress  may  by  law  have  di- 
rected; and  the  sixth  amendment  provides  that  the  trial  shall 
be  in  the  state  and  district  wherein  the  crime  shall  have  been 
committed.  The  provisions  of  these  amendments  apply  only  to 
trials  in  the  federal  courts,  not  to  proceedings  in  the  state 
courts,  and  they  apply  only  to  strictly  criminal  proceedings,  not 

40  Tj.  S.  v.  Lee  (D.  C.)  84  Fed.  626;  Price  v.  McCarty,  89  Fed.  84, 
32  C.  C.  A.  162;  In  re  Wood  (D.  C.)  95  Fed.  288;  U.  S.  v.  Greene 
(D.  C.)  100  Fed.  941;  Greene  v.  Henkel,  183  U.  S.  249,  22  Sup.  Ct.  218, 
46  L.  Ed.  177. 

♦  1  U.  S.  v.  Price  (D.  C.)  84  Fed.  636. 

42  u.  S.  v.  Karlin  (D.  C.)  85  Fed.  963. 


32  DISTRICT  COURT — CRIMINAL  JURISDICTION.         (Ch.  2 

to  contempt  proceedings.48  In  furtherance  of  these  constitu- 
tional provisions,  section  729  of  the  Revised  Statutes  44  pro- 
vides that  the  trial  of  capital  offenses  shall  be  had  in  the  county 
where  the  offense  was  committed,  where  it  can  be  done  without 
great  inconvenience.  Section  730  provides  that  the  trial  of 
offenses  committed  on  the  high  seas  or  elsewhere,  out  of  the 
jurisdiction  of  any  particular  state  or  district,  shall  be  in  the 
district  where  the  offender  is  found,  or  into  which  he  is  first 
brought ;  and  section  731  provides  that  where  an  offense  is 
begun  in  one  judicial  circuit,  and  completed  in  another,  it  shall 
be  deemed  to  have  been  committed  in  either,  and  may  be  dealt 
with  in  either ;  the  word  "circuit"  in  this  statute  being  a  palpa- 
ble misprint  for  "district."  Under  these  constitutional  and 
statutory  provisions,  it  is  evident  that  the  proper  place  for  the 
trial  of  offenses  committed  within  any  district  is  that  district. 

It  may  be  sometimes  a  difficult  question  to  decide  just  where 
an  offense  has  been  committed.  That  depends  upon  the  char- 
acter of  the  offense,  and  the  proper  construction  of  the  statute 
creating  it.  To  illustrate,  it  was  held  in  the  case  of  Palliser 
v.  U.  S.4B  that  a  New  York  party  who  wrote  to  a  Connecticut 
postmaster,  offering  to  buy  stamps  on  credit,  against  the  statute 
forbidding  it,  committed  his  offense  in  Connecticut,  where  the 
letter  was  received,  and  the  Connecticut  district  was  the  proper 
place  where  he  should  be  tried.  So,  too,  in  the  case  of  U.  S. 
v.  Horner,48  where  a  lottery  ticket  was  mailed  in  New  York 
to  a  party  in  Illinois,  it  was  held  that  the  offense  was  triable 
in  Illinois.  The  Supreme  Court,  however,  has  never  finally 
settled  definitely  where  the  prosecution  for  murder  should  be 
tried,  where  the  fatal  blow  was  given  in  one  district  and  the 


43  Nashville,  C.  &  St.  L.  R.  Co.  v.  Alabama,  128  U.  S.  96,  9  Sup. 
Ct.  28,  32  L.  Ed.  352;  Eilenbecker  v.  District  Court,  134  U.  S.  31,  10 
Sup.  Ct.  424,  33  L.  Ed.  801. 

44  1  U.  S.  Comp.  St.  1901,  p.  585. 

4  6  (C.  C.)  40  Fed.  575;  136  TJ.  S.  257,  10  Sup.  Ct.  1034,  34  L.  Ed.  514. 
4e  (D.  C.)  44  Fed.  677;  143  TJ.  S.  207,  12  Sup.  Ct.  407,  36  L.  Ed. 
126. 


§§  18-19)   PLACE  OF  TRIAL — WARRANT  OF  REMOVAL.     33 

death  occurred  in  another,  though  the  question  is  discussed  in 
the  case  of  Palliser  v.  U.  S.47  and  in  the  case  of  Ball  v.  U.  S.48 

The  constitutional  provision  in  reference  to  trying  the  case 
in  the  district  where  it  arose  does  not,  however,  prevent  Con- 
gress from  enacting,  as  it  has  done  in  section  730,  that  the 
trial  of  offenses  on  the  high  seas,  or  outside  of  any  district  at 
all,  shall  be  in  the  district  where  the  offender  is  found  or  into 
which  he  is  first  brought.49 

In  U.  S.  v.  Arwo  50  a  murder  had  been  committed  on  the 
high  seas.  The  murderer  was  taken  into  the  Southern  District 
of  New  York,  and  turned  over  to  the  authorities  there.  The 
vessel  containing  him  stopped  five  days  at  quarantine  at  the 
mouth  of  the  lower  harbor  of  New  York  City,  which  was  in 
the  Eastern  District  of  New  York.  The  Supreme  Court  held, 
in  an  opinion  containing  no  discussion  of  the  question,  that  he 
could  be  tried  in  the  Southern  District,  where  the  officers 
had  carried  him. 

Under  sections  5570  and  following  51  there  are  various  regu- 
lations in  relation  to  guano  islands  which  have  come  under  the 
jurisdiction  of  the  United  States.  One  of  these  sections  pro- 
vides that  crimes  committed  on  these  islands  shall  be  considered 
as  committed  on  the  high  seas.  In  the  case  of  Jones  v.  U.  S.52 
it  was  held  that  such  offenses,  under  section  730,  could  be  tried 
in  the  district  where  the  offender  was  brought. 

47  13G  U.  S.  257,  10  Sup.  Ct.  1034,  34  L.  Ed.  514. 
"  140  U.  S.  118,  11  Sup.  Ct.  761,  35  L.  Ed.  377. 
49  TJ.  S.  v.  Dawson,  15  How.  467,  14  L.  Ed.  775;   Cook  v.  U.  S.,  138 
U.  S.  157.  11  Sup.  Ct.  268.  34  L.  Ed.  906. 
6°  19  Wall.  486,  22  L.  Ed.  67. 
6i  U.  S.  Comp.  St.  1901,  p.  3729. 
62  137  U.  S.  202,  11  Sup.  Ct.  80,  34  L.  Ed.  691. 
Hughes  Fed.  Jub. — 3 


31  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Ch.  3 


CHAPTER  HE. 

THE  DISTRICT  COURT  (Continued)— CRIMINAL  JURISDICTION 
AND  PRACTICE  (Continued). 

20.  Indictment 

21.  Same — Form  of  Indictment. 

22.  Information. 

23.  Same — Form  of  Information. 

24.  The  Defense. 

25.  The  Trial  and  Its  Incidents. 

INDICTMENT. 

20.  Indictment  by  a  grand  jury  is  tie  most  formal  mode  of 
criminal  procedure,  and  is  required  by  law  in  all  cases 
of  capital  or  infamous  offenses. 

The  general  rules  of  criminal  procedure  and  practice  in  the 
federal  courts  are  based  upon  those  of  the  common  law, 
though  the  rigor  and  technicality  of  the  common  law  have 
been  much  modified  by  statute.1  The  fourth,  fifth,  sixth, 
seventh,  and  eighth  amendments  to  the  federal  Constitution 
are  practically  a  bill  of  rights,  and  show  the  solicitude  of 
our  ancestors  to  protect  the  citizen  in  every  way  from  unjust 
prosecutions.  In  fact,  these  amendments  are  practically 
parts  of  the  original  Constitution,  for  the  only  way  in  which 
some  of  the  states  were  induced  to  adopt  the  Constitution 
in  their  state  conventions  was  the  assurance  of  its  advocates 
that  it  should  at  once  be  amended  by  these  additions. 

The  fifth  amendment  of  the  Constitution  provides,  among 
other  things,  that  no  person  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless  on  a  presentment 
or  indictment  of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual  service 

i  Howard  v.  U.  S.,  75  Fed.  9SG,  21  C.  C.  A.  5SG,  34  L.  R.  A.  509. 


§  20)  INDICTMENT.  35 

in  time  of  war  or  public  danger.  This  renders  an  indictment  ' 
necessary  in  all  cases  of  capital  or  infamous  offenses.  The 
question,  what  constitutes  an  infamous  offense  was  long 
unsettled,  but  recent  decisions  of  the  Supreme  Court  have 
laid  down  as  the  test  the  punishment  which  can  be  inflicted. 
Any  offense  which  may  be  punishable  by  confinement  for  a\ 
term  of  years,  either  with  or  without  hard  labor,  is  an  in-  j 
famous  offense,  in  the  sense  of  this  provision  of  the  Consti-  j 
tution.  The  test  is  not  the  punishment  that  is  actually  in- 
flicted in  the  special  case,  but  the  punishment  that  might  be 
inflicted  on  the  crime  charged  in  the  indictment,  whether  that 
punishment,  as  a  matter  of  fact,  is  inflicted  in  the  special  case 
or  not ;  and  the  Supreme  Court  in  these  cases  has  repudiated 
the  test  of  infamous  offenses  based  upon  the  question  of  its 
effect  on  the  prisoner  in  regard  to  his  competency  as  a  wit- 
ness thereafter,  and  applies  simply  the  test  as  to  the  character 
of  the  punishment.2  The  question  whether  a  given  act  is 
a  felony  or  not  does  not  affect  the  question  whether  the  of- 
fense is  infamous.  If  the  punishment  is  as  defined  above, 
the  offense  is  infamous,  though  only  a  misdemeanor;  and, 
if  not  as  defined  above,  it  may  not  be  infamous,  though  a 
felony. 

Independent  of  statute,  a  felony  means  those  offenses  pun- 
ishable by  forfeiture  of  lands  or  goods  with  capital  or  other 
punishment  superadded.3 

Under  section  1021  of  the  Revised  Statutes,4  no  indictment 
shall  be  found,  nor  shall  any  presentment  be  made,  without 
the  concurrence  of  at  least  twelve  grand  jurors.  It  is  not, 
however,  necessary  for  the  indictment  to  show  upon  its  face 
that  it  was  found  by  twelve  grand  jurors.5 

2  Ex  parte  WILSON,  114  U.  S.  417,  5  Sup.  Ct.  935,  29  L.  Ed.  89; 
Mackin  v.  U.  S.,  117  U.  S.  348,  6  Sup.  Ct.  777,  29  L.  Ed.  909;  In  re 
Claasen,  140  U.  S.  200,  11  Sup.  Ct.  735,  35  L.  Ed.  409. 

3  Bannon  v.  U.  S.,  156  U.  S.  464,  15  Sup.  Ct.  467,  39  L.  Ed.  494. 
*  1  U.  S.  Conip.  St.  1901,  p.  719. 

b  U.  S.  v.  Laws,  2  Low.  115,  Fed.  Cas.  No.  15,579;  Caha  v.  U.  S., 
152  U.  S.  211,  14  Sup.  Ct.  513,  38  L.  Ed.  415. 


3G  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Ch.  3 

Tfte  Court  to  Try  Indictments. 

Under  section  1037  of  the  Revised  Statutes,6  whenever  the 
district  attorney  deems  it  necessary,  any  circuit  court  may, 
by  order  entered  on  its  minutes,  remit  any  indictment  pend- 
ing therein  to  the  next  session  of  the  district  court  of  the 
same  district,  where  the  offense  charged  in  the  indictment  is 
cognizable  by  the  said  district  court ;  and  in  like  manner  any 
district  court  may  remit  to  the  next  session  of  the  circuit 
court  of  the  same  district  any  indictment  pending  in  the  said 
district  court.  Under  this  section  the  court  cannot  enter 
such  an  order  on  its  own  motion,  and  it  can  only  be  done  in 
cases  of  which  the  two  courts  have  concurrent  jurisdiction.7 
The  original  indictment  need  not  be  sent  up  in  such  case,  but 
a  certified  copy  may  be  used.8 

Such  an  order  may  be  entered  at  any  time  before  final  judg- 
ment.9 

The  court  to  which  an  indictment  has  been  remitted  may 
send  it  back.10  This  power  to  remit  applies  only  to  indict- 
ments, not  to  informations.11  Under  section  1038  of  the 
Revised  Statutes,12  any  district  court  may  remit  any  indict- 
ment pending  therein  to  the  next  session  of  the  circuit  court 
for  the  same  district,  when,  in  the  opinion  of  such  district 
court,  difficult  and  important  questions  of  law  are  involved 
in  the  case.  This,  however,  is  done  only  in  cases  of  great 
importance,  for  the  district  judge  usually  holds  the  circuit 
court.18     Section  1039,  Rev.  St.  U.  S.,14  provides  that  every 


e  1  U.  S.  Comp.  St.  1901,  p.  723. 

t  U.  S.  v.  Bennett,  Fed.  Gas.  No.  14,571;  Campbell  v.  Kirkpatrick, 
5  McLean,  175,  Fed.  Cas.  No.  2,363. 

s  U.  S.  v.  McKee,  Fed.  Cas.  No.  15,6S7. 

s  TJ.  S.  v.  Morris,  Fed.  Cas.  No.  15,815;  U.  S.  v.  Haynes  (C.  C.)  26 
Fed.  857;  Id.  (D.  C.)  29  Fed.  691;   In  re  Haynes  (C.  C.)  30  Fed.  767. 

io  U.  S.  v.  Murphy,  3  Wall.  649,  18  L.  Ed.  217. 

ii  U.  S.  v.  Tiernay  (C.  C.)  16  Fed.  513. 

12  1  U.  S.  Comp.  St.  1901,  p.  723. 

is  U.  S.  v.  O'Suilivan,  Fed.  Cas.  No.  15,973. 

i*  1  U.  S.  Comp.  St.  1901,  p.  723. 


§  21)  INDICTMENT.  37 

indictment  of  a  capital  offense  presented  to  a  district  court, 
together  with  recognizances  taken  therein,  shall,  by  order 
entered  on  its  minutes,  be  remitted  to  the  next  session  of 
the  circuit  court  for  the  same  district ;  thus  giving  a  district 
court  jurisdiction  to  empanel  a  grand  jury  and  receive  an 
indictment  in  a  capital  offense,  though  it  would  not  have  juris- 
diction to  try  it. 

SAME— FORM  OF  INDICTMENT. 

21.  An  indictment  in  the  federal  conrts,  though  defective  in 
matter  of  form,  is  sufficient  if  the  necessary  facts  of 
time,  place,  and  circumstances  are  so  stated  as  to  en- 
able the  accused  to  concert  his  defense  and  protect 
himself  from  a  second  prosecution,  and  as  to  enable 
the  court  to  decide  whether  it  is  legally  sufficient  to 
support  a  conviction. 

Section  1025,  Rev.  St.  U.  S.,15  provides  that  no  indictment 
found  and  presented  by  a  grand  jury  in  any  district  or  cir- 
cuit or  other  court  of  the  United  States  shall  be  deemed  in- 
sufficient, nor  shall  the  trial,  judgment,  or  other  proceeding 
thereon  be  affected,  by  reason  of  any  defect  or  imperfection 
in  matter  of  form  only,  which  shall  not  tend  to  the  preju- 
dice of  the  defendant. 

Under  this  federal  statute  of  jeofails,  indictments  in  the 
federal  courts  are  simple  and  devoid  of  archaic  terms  or  cum- 
brous forms.  At  the  same  time  they  must  be  so  definite  as 
to  give  the  accused  notice  of  the  crime  charged  against  him, 
enable  him  to  concert  his  defense,  and  enable  him  also  to 
plead  former  acquittal  or  conviction  in  the  event  of  a  second 
trial  for  the  same  offense.  The  general  requisites  of  an  in- 
dictment are  well  defined  in  the  case  of  U.  S.  v.  Cruikshank  16 
as  follows:  "In  criminal  cases  prosecuted  under  the  laws 
of  the  United  States,  the  accused  has  the  constitutional  right 

is  1  U.  S.  Comp.  St.  1901,  p.  720. 

i«  TJ.  S.  v.  CRUIKSHANK,  92  U.  S.  542,  23  L.  Ed.  5S8. 


38  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Ch.  3 

'to  be  informed  of  the  nature  and  cause  of  the  accusation." 
Amend.  6.     In  United  States  v.  Mills,  7  Pet.  142  [8  L.  Ed. 
636],  this  was  construed  to  mean  that  the  indictment  must 
set  forth  the  offense  'with  clearness  and  all  necessary  certainty, 
to  apprise  the  accused  of  the  crime  with  which  he  stands 
charged' ;   and  in  United  States  v.  Cook,  17  Wall.  174  [21  L. 
Ed.  538],  that  'every  ingredient  of  which  the  offense  is  com- 
posed must  be  accurately  and  clearly  alleged.'     It  is  an  ele- 
mentary principle  of  criminal  pleading  that  where  the  defini- 
Ition  of  an  offense,  whether  it  be  at  common  law  or  by  stat- 
I  ute,  includes  generic  terms,  it  is  not  sufficient  that  the  indict- 
!  ment  shall  charge  the  offense  in  the  same  generic  terms  as  in 
i  the  definition,  but  it  must  state  the  species— it  must  descend 
[  to  particulars.     1  Archb.  Cr.  Pr.  &  PI.  291.     The  object  of 
.the  indictment  is,  first,  to  furnish  the  accused  with  such  a 
'description  of  the  charge  against  him  as  will  enable  him  to 
make  his  defense,  and  avail  himself  of  his  conviction  or  ac- 
quittal for  protection  against  a  further  prosecution  for  the 
same  cause;    and,  second,  to  inform  the  court  of  the  facts 
alleged,  so  that  it  may  decide  whether  they  are  sufficient  in 
law  to  support  a  conviction,  if  one  should  be  had.     For  this, 
facts  are  to  be  stated,  not  conclusions  of  law  alone.     A  crime 
is  made  up  of  acts  and  intent,  and  these  must  be  set  forth  in 
the  indictment  with  reasonable  particularity  of  time,  place,  and 
circumstances."     In   statutory   offenses   the   language   of  the 
statute  may  be  followed,  but  this  does  not  dispense  with  the 
necessity  of  setting  out  the  specific  elements  of  the  off  ens*' 
itself  with  sufficient  definiteness  to  put  the  prisoner  on  his  de- 
fense, and  to  enable  him  to  protect  himself  from  a  second 
prosecution.17     It  must  charge  the  time  and  place,  though  a 
blank  as  to  the  exact  date  is  not  always  fatal,  and  naming 
the  county  instead  of  the  town  is  at  least  not  fatal  on  a  mo- 

iT  U.  S.  v.  Fero  (D.  C.)  18  Fed.  901;  U.  S.  v.  Brazeau  (C.  C.)  78  Fed. 
464;  Peters  v.  TJ.  S.,  94  Fed.  127,  36  C.  C.  A.  105;  Cochran  v.  U.  S., 
157  U.  S.  2S6,  15  Sup.  Ct.  G2S,  39  L.  Ed.  704. 


§  21)  INDICTMENT.  39 

tion  in  arrest  of  judgment.18  As  to  offenses  on  the  high  seas, 
it  is  not  necessary  to  charge  the  special  place  where  they  hap- 
pened, for  the  general  allegation  that  they  were  on  the  high 
seas  and  out  of  the  jurisdiction  of  any  particular  state  is  suffi- 
cient.19 

In  setting  out  a  draft  contained  in  a  registered  letter  al- 
leged to  have  been  stolen,  a  description  of  it,  giving  the  name 
of  the  maker,  the  payee,  the  payee's  address,  and  the  place 
where  it  is  payable,  with  an  allegation  that  further  particulars 
are  unknown  to  the  grand  jury,  is  sufficient;  the  draft  having 
been  destroyed.20  The  indictment  must  give  the  name,  not 
the  mere  initials,  of  the  accused ;  but,  if  the  sound  is  the 
same,  the  fact  that  the  spelling  is  incorrect  does  not  vitiate  it.21 
An  indictment  must  set  out  a  written  document  in  hsec  verba, 
though,  as  to  certain  matter  made  unmailable  by  the  federal 
statutes,  an  allegation  in  the  indictment  that  it  is  improper 
to  be  put  upon  the  records  of  the  court  renders  it  discretionary 
with  the  court  whether  to  require  such  matter  to  be  set  out 
in  the  indictment,  and  the  exercise  of  such  discretion  is  not 
reviewable;  nor  does  a  failure  to  require  it  to  be  set  out  in- 
fringe the  prisoner's  constitutional  right  to  be  informed  of 
the  nature  and  cause  of  the  accusation.22  The  indorsement 
on  the  indictment  of  a  reference  to  the  statute  on  which  the 
district  attorney  supposes  it  to  be  based  is  not  a  part  of  the 


is  Ball  v.  U.  S.,  140  U.  S.  118,  11  Sup.  Ct.  761,  35  L.  Ed.  377;  Id., 
163  U.  S.  662,  16  Sup.  Ct.  1192,  41  L.  Ed.  300;  Ledbetter  v.  U.  S.,  170 
U.  S.  606,  18  Sup.  Ct.  774,  42  L.  Ed.  1162;  U.  S.  v.  Conrad  (C.  C.)  59 
Fed.  458. 

is  ANDERSEN  v.  U.  S.,  170  U.  S.  481,  18  Sup.  Ct.  689,  42  L.  Ed. 
1116. 

20  Rosencrans  v.  U.  S.,  165  U.  S.  257,  17  Sup.  Ct.  302,  41  L.  Ed.  708. 

2i  U.  S.  v.  Upham  (C.  C.)  43  Fed.  68;  Faust  v.  U.  S.,  163  U.  S.  452, 
16  Sup.  Ct.  1112,  41  L.  Ed.  224. 

22  u.  S.  v.  Noelke  (C.  C.)  1  Fed.  426;  U.  S.  v.  Watson  (D.  C.)  17 
Fed.  145;  Dunlop  v.  U.  S.,  1G5  U.  S.  486,  17  Sup.  Ct.  375,  41  L.  Ed. 
799;    Rosen  v.  U.  S.,  161  U.  S.  29,  16  Sup.  Ct.  434,  480,  40  L.  Ed.  606. 


40  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Ch.  3 

indictment  itself,  and  the  indictment  is  good  if  sustainable 
under  some  other  statute.23 

Section  539C  of  the  Revised  Statutes  24  makes  special  pro- 
vision for  an  indictment  charging  perjury,  and  this  special 
provision  is  not  modified  or  done  away  with  by  section  1025. 2B 
Whether  an  indictment  on  a  statute  must  negative  an  excep- 
tion in  the  statute  depends  upon  the  forrrn  of  the  statute  itself. 
If  the  exception  is  in  the  same  clause  as  the  offense,  so  inter- 
woven as  to  be  inseparable,  the  indictment  should  negative 
it ;  but,  if  it  is  in  a  separate  clause,  then  the  exception  is  mat- 
ter of  defense,  and  need  not  be  negatived  in  the  indictment.28 
So  liberal  is  the  practice  under  section  1025  that  the  omission 
of  the  usual  phrase,  "contrary  to  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the 
United  States"  is  mere  matter  of  form,  and  does  not  vitiate 
the  indictment.27 

Nor  is  it  necessary  to  use  the  word  "feloniously,"  when  the 
statute  itself  does  not  use  it.28  The  recital  in  the  indictment 
that  it  was  found  upon  the  oaths  of  the  grand  jurors,  when 
one  of  them  affirmed,  is  also  a  mere  matter  of  form.28  An 
indictment  need  not  set  out  regulations  made  by  any  of  the 
departments  under  statutory  authority,  nor  need  they  be 
offered  in  evidence,  for  the  courts  notice  them  judicially.30 
Charges  or  allegations  in  an  indictment  which  are  not  neces- 
sary may  be  disregarded,  but  cannot  be  struck  out.  There 
is  no  such  thing  as  amending  an  indictment.     It  is  supposed 

as  Williams  v.  U.  S.,  168  U.  S.  382,  18  Sup.  Ct.  92,  42  L.  Ed.  509. 

a*  3  U.  S.  Comp.  St.  1901,  p.  3655. 

2b  Markham  v.  U.  S.,  160  U.  S.  319,  16  Sup.  Ct.  288,  40  L.  Ed.  441. 

26  u.  S.  v.  Moore  (C.  C.)  11  Fed.  248;  U.  S.  v.  Nelson  (D.  C.)  29 
Fed.  202;  Nelson  v.  U.  S.  (C.  C.)  30  Fed.  112;  Shelp  v.  U.  S.,  81  Fed. 
694,  26  C.  C.  A.  570. 

27  Frisbie  v.  U.  S.,  157  U.  S.  160,  15  Sup.  Ct.  586,  39  L.  Ed.  657. 
zs  Bannon  v.  U.  S.,  156  U.  S.  464,  15  Sup.  Ct.  467,  39  L.  Ed.  494. 
29  Bram  v.  U.  S.,  168  U.  S.  532,  18  Sup.  Ct.  183,  42  L.  Ed.  568. 

so  Wilkins  v.  U.  S.,  96  Fed.  837,  37  C.  C.  A.  588;  Caha  v.  U.  S..  152 
U.  S.  211,  14  Sup.  Ct.  513,  38  L.  Ed.  415. 


§  21)  INDICTMENT.  41 

to  be  the  act  of  the  grand  jury,  and  it  is  not  for  the  court  to 
say  what  charges  in  it  induced  them  to  find  it,  and  what  not. 
An  amendment  by  the  court,  even  in  striking  out  words  which 
could  be  disregarded  as  surplusage,  makes  it  no  longer  an 
indictment  of  a  grand  jury,  makes  it  an  absolute  nullity,  de- 
prives the  court  of  jurisdiction  to  try  it,  and  entitles  the 
prisoner  to  be  released  on  habeas  corpus.81 

Each  count  of  an  indictment  must  charge  but  one  distinct 
offense,  but  section  1024,  Rev.  St.  U.  S.,32  provides  that  when 
there  are  several  charges  against  any  person  for  the  same 
act  or  transaction,  or  for  two  or  more  acts  or  transactions 
connected  together,  or  for  two  or  more  acts  or  transactions 
of  the  same  class  of  crimes  or  offenses,  which  may  be  prop- 
erly joined,  instead  of  having  several  indictments  the  whole 
may  be  joined  in  one  indictment,  in  separate  counts ;  and,  if 
two  or  more  indictments  are  found,  in  such  cases  the  court 
may  order  them  to  be  consolidated. 

Although  each  count  must  charge  a  distinct  offense,  a 
count  for  murder  does  not  become  liable  to  the  charge  of  du- 
plicity by  reciting  that  the  murder  was  committed  by  shoot- 
ing and  drowning.33  A  count  may  charge  as  a  single  offense 
a  series  of  acts  which  constitute  a  single  transaction,  though 
these  acts  may  become  separate  offenses  as  regards  separate 
provisions,34  and  it  may  be  that  two  supposed  offenses  may 
be  merely  successive  acts  in  one  transaction. SB  A  single  count 
may  charge  one  defendant  as  a  principal,  and  another  as 
accessory,  and  this  does  not  make  it  liable  to  the  charge  of 
duplicity.36 

Under  this  power  of  joinder,  even  separate  murders  may 


«i  Ex  parte  BAIN,  121  U.  S.  1,  7  Sup.  Ct  781,  30  L.  Ed.  849. 
8«  1  TJ.  S.  Comp.  St.  1901,  p.  720. 

as  ANDERSEN  v.  U.  S.,  170  U.  S.  481,  18  Sup.  Ct.  689,  42  L.  Ed. 
1116. 

s*  U.  S.  v.  Scott  (C.  C.)  74  Fed.  213. 
86  U.  S.  v.  Fero  (D.  C.)  18  Fed.  901. 
s«  U.  S.  v.  Berry  (D.  C.)  96  Fed.  842. 


42  DISTRICT    COURT CRIMINAL    JURISDICTION.  (Cll.  3 

be  joined  in  one  indictment  under  separate  counts.37  Fel- 
onies and  misdemeanors  may  be  joined  also,  if  of  the  same 
general  class.38  There  is,  however,  a  limit  to  this  power  of 
joinder.  In  McElroy  v.  U.  S.30  the  Supreme  Court  held,  in 
a  case  of  indictments  against  three  parties  for  assault  with 
intert  to  kill  one  party,  another  indictment  against  the  same 
parties  for  assault  with  intent  to  kill  another  party,  another 
indictment  against  the  same  parties  for  arson  of  the  dwelling 
house  of  one  party,  and  another  indictment  against  three  of 
these  parties  for  arson  of  the  dwelling  house  of  another  party, 
that  these  could  not  be  consolidated,  and  these  different  de- 
fendants arraigned  together  in  an  omnibus  trial  for  these 
various  offenses. 

It  is  always  discretionary  with  the  court  to  compel  the  gov- 
ernment to  elect  on  which  of  several  indictments  or  counts 
it  will  proceed,  and  this  may  be  done  at  any  time  during  the 
trial ;  and  the  court  will  always  do  it  if  convinced  that  a  trial 
upon  too  many  indictments  or  counts  would  embarrass  the 
defendant  in  his  defense.40 

It  is  allowable  for  the  different  counts  to  refer  to  each 
other.41  The  fact  that  one  count  is  invalid,  because  based 
upon  a  complaint  made  on  information  only,  does  not  invali- 
date other  counts  made  upon  a  complaint  based  on  personal 
knowledge.48 

at  Pointer  v.  U.  S.,  151  U.  S.  396,  14  Sup.  Ct.  410,  38  L.  Ed.  208. 

ss  U.  S.  v.  Spintz  (C.  C.)  18  Fed.  377. 

8»  164  U.  S.  76,  17  Sup.  Ct.  31,  41  L.  Ed.  355. 

40  Pointer  v.  U.  S.,  151  U.  S.  396,  14  Sup.  Ct.  410,  38  L.  Ed.  208; 
Pierce  v.  U.  S.,  160  U.  S.  355,  16  Sup.  Ct.  321,  40  L.  Ed.  454;  Gardes 
v.  U.  S.,  87  Fed.  172,  30  C.  C.  A.  596;  Id.,  171  U.  S.  689,  19  Sup.  Ct. 
884,  43  L.  Ed.  1179. 

4i  Blitz  v.  U.  S.,  153  U.  S.  308,  14  Sup.  Ct.  924,  38  L.  Ed.  725 ;  Crain 
v.  U.  S.,  162  U.  S.  625,  16  Sup.  Ct.  952,  40  L.  Ed.  1097;  U.  S.  v. 
Peters  (C.  C.)  87  Fed.  984;  Peters  v.  U.  S.,  94  Fed.  127,  36  C.  C.  A. 
105. 

42  Rice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  406,  45  L.  Ed.  577. 


}§  22-23)  INFORMATION.  43 


INFORMATION. 

22.  Information  by  the  district  attorney  is  a  method  of  crim- 
inal procedure  less  formal  than  the  indictment,  and 
an  information  lies  in  any  cases  not  capital  or  in- 
famous. 


SAME— FORM  OF  INFORMATION. 

23.   Information    mnst    conform     substantially    to    the    rules 
stated  above  in  relation  to  indictments. 

The  requisites  of  an  indictment  apply  to  informations.  An 
information  lies  in  any  cases  not  capital  or  infamous,  as  above 
defined.  Section  1022,  Rev.  St.  U.  S.,43  which  provides  that 
all  crimes  and  offenses  committed  against  the  provisions  of 
chapter  7,  tit.  "Crimes"  (this  chapter  defining  offenses  against 
the  elective  franchise),  which  are  not  infamous,  may  be  prose- 
cuted by  indictment  or  by  information  filed  by  a  district  attor- 
ney, must  be  construed  in  conjunction  with  the  fifth  amend- 
ment of  the  Constitution,  and  was  not  intended  to  mean  that 
only  those  special  offenses  could  be  proceeded  against  by  in- 
formation.44 An  information  must  be  by  leave  of  court,  and/ 
the  judge  may  give  the  accused  an  opportunity  to  show  causej 
against  its  filing.46  A  complaint,  to  justify  an  information^ 
must  show  personal  knowledge  and  probable  cause.48 

43  l  U.  S.  Comp.  St.  1901,  p.  720. 

44  Ex  parte  WILSON,  114  U.  S.  417,  5  Sup.  Ct.  935,  29  L.  Ed.  89. 
4  5  U.  S.  v.  Smith  (C.  C.)  40  Fed.  755. 

4  6  Johnston  v.  U.  S.,  87  Fed.  187,  30  C.  C.  A.  612;  U.  S.  v.  Tureaud 
(0.  C.)  20  Fed.  621. 


ii  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Cll.  3 


THE  DEFENSE. 

24.  Tie  method  of  defense  is  substantially  the  same  as  in  the 
state  courts,  i.  e.  by  motions  to  quash,  demurrers,  or 
pleas,  dilatory  or  peremptory,  according  to  the  char- 
acter of  the  defense. 

Prisoner  Entitled  to  Copy  of  Indictment  and  Lists  of  Jurors 
and  Witnesses  Before  Trial. 
Section  1033  of  the  Revised  Statutes47  provides  that,  when 
any  person  is  indicted  of  treason,  a  copy  of  the  indictment 
and  a  list  of  the  jury,  and  of  the  witnesses  to  be  produced 
on  the  trial  for  proving  the  indictment,  stating  the  place  of 
abode  of  each  juror  and  witness,  shall  be  delivered  to  him  at 
least  three  entire  days  before  he  is  tried  for  the  same.  When 
any  person  is  indicted  of  any  other  capital  offense,  such  copy 
of  the  indictment  and  list  of  the  jurors  and  witnesses  shall 
be  delivered  to  him  at  least  two  entire  days  before  the  trial. 
This  requirement,  as  is  obvious  from  its  language,  applies 
only  to  capital  offenses.  The  prisoner  must  ask  for  it  before 
pleading  or  the  commencement  of  the  trial,  or  he  will  be  held 
to  have  waived  it.48  If  a  witness  is  offered  whose  name  is 
not  on  the  list  furnished,  the  defendant  must  object  at  once, 
and  not  wait  until  the  witness  has  been  examined  in  chief, 
as  such  action  also  will  be  a  waiver.49 

General  Defenses. 

The  method  of  defense  in  criminal  cases  in  the  federal 
courts  is  practically  the  same  that  prevails  in  the  courts  of 
the  different  states,  and  the  general  rules  of  criminal  proce- 

*»  1  U.  S.  Comp.  St.  1901,  p.  722. 

48  u.  S.  v.  Cornell,  Fed.  Cas.  No.  14,868;  U.  S.  v.  Curtis,  Fed.  Cas. 
No.  14,905. 

49  Hickory  v.  U.  S.,  151  U.  S.  303,  14  Sup.  Ct.  334,  38  L.  Ed.  170. 
See,  in  general,  Van  Duzee  v.  U.  S.  (D.  C.)  41  Fed.  571;  U.  S.  v.  Van 
Duzee,  140  U.  S.  169,  11  Sup.  Ct.  758,  35  L.  Ed.  399;  Logan  v.  U.  S., 
144  U.  S.  263,  12  Sup.  Ct.  617,  36  L.  Ed.  429. 


§  24)  THE    DEFENSE.  45 

dure  are  applicable.  Dilatory  defenses  must  be  made  first 
and  promptly.  Defenses  of  this  sort  are  usually  made  either 
by  motion  to  quash  or  by  plea  in  abatement.  A  motion  to 
quash  may  be  made  even  when  dependent  on  facts  not  ap- 
pearing on  the  face  of  the  record,  and  evidence  may  be  ad- 
duced on  the  hearing  of  the  motion.  In  fact,  the  mere  affi- 
davit to  a  written  motion  to  quash,  setting  out  facts  not 
admitted,  and  accompanied  by  no  evidence,  is  not  sufficient 
proof  to  sustain  it.  For  instance,  a  motion  to  quash  an 
indictment  on  the  ground  that  negroes  were  improperly  ex- 
cluded from  the  jury  was  held  to  have  been  properly  denied 
when  the  only  proof  of  the  fact  alleged  was  the  affidavit  to 
the  written  motion.60  A  motion  to  quash  is  addressed  to/ 
the  discretion  of  the  court,  and  therefore  the  action  of  the 
court  upon  it  is  not  usually  a  ground  of  error.61  An  excep- 
tion to  the  make-up  of  a  grand  jury  may  be  made  by  a  plea 
in  abatement  or  by  motion  to  quash,  and,  if  it  depends  upon 
facts  not  shown  by  the  record,  evidence  is  admissible  in  sup- 
port of  it,  but  it  must  be  made  before  pleading  in  bar.62  A 
plea  in  abatement  is  also  the  proper  way  to  raise  questions 
of  this  character  dependent  on  outside  facts,  but  any  objection 
to  the  composition  of  a  grand  jury  must  be  offered  at  the 
earliest  opportunity,  and  the  plea  in  abatement  is  too  late,  if 
the  prisoner  had  any  earlier  opportunity  in  court  to  question 
the  manner  in  which  the  grand  jury  was  formed.63 
A  plea  in  abatement  is  waived  by  pleading  in  bar.64 
Defenses  of  law  going  to  the  substance  are  raised  by  de- 
murrer, but  under  section  1025,  heretofore  discussed,  special 
demurrers  to  mere  matters  of  form  are  practically  super- 

60  Smith  v.  Mississippi,  162  U.  S.  592,  16  Sup.  Ct.  900,  40  L.  Ed. 
1082. 

si  Logan  v.  U.  S.,  144  U.  S.  263,  12  Sup.  Ct.  617,  36  L.  Ed.  429; 
Durland  t.  U.  S.,  161  U.  S.  306,  16  Sup.  Ct.  508,  40  L.  Ed.  709. 

52  Carter  v.  Texas,  177  U.  S.  442,  20  Sup.  Ct.  687,  44  L.  Ed.  839. 

68  Agnew  v.  U.  S.,  165  U.  S.  36,  17  Sup.  Ct.  235,  41  L.  Ed.  624. 

54  U.  S.  v.  Gale,  109  U.  S.  65,  3  Sup.  Ct.  1,  27  L.  Ed.  857. 


4<J  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Cll.  3 

seded.50  If  a  demurrer  is  overruled,  the  proper  judgment  is 
respondeat  ouster.56 

After  dilatory  defenses  are  disposed  of,  and  the  prisoner  is 
arraigned,  section  1032,  Rev.  St.  U.  S.,  87  provides  that  when 
any  person  indicted  for  any  offense  against  the  United  States, 
whether  capital  or  otherwise,  upon  his  arraignment  stands 
mute,  or  refuses  to  plead  or  answer  thereto,  it  shall  be  the  duty 
of  the  court  to  enter  the  plea  of  not  guilty  on  his  behalf,  in 
the  same  manner  as  if  he  had  pleaded  not  guilty  thereto,  and 
when  the  party  pleads  not  guilty,  or  such  plea  is  entered  as 
aforesaid,  the  cause  shall  be  deemed  at  issue,  and  shall,  with- 
out further  form  or  ceremony,  be  tried  by  a  jury.  It  has 
been  held  that  this  section  applies  to  informations  as  well  as 
indictments.58 

The  record  in  a  criminal  case  must  show  both  an  arraign- 
ment and  a  plea ;  otherwise  there  is  no  issue  for  the  jury 
to  try,  and  a  verdict  and  judgment  following  would  be  fatally 
defective.69  Nearly  all  defenses  going  to  the  merits  may  be 
made  under  a  plea  of  not  guilty,  but  there  is  at  least  one 
which,  in  its  very  nature,  would  have  to  be  pleaded  specially. 
Under  amendment  5  of  the  Constitution,  it  is  provided  that 
no  person  shall  be  subject,  for  the  same  offense,  to  be  twice 
put  in  jeopardy  of  life  or  limb.  A  defense  of  once  in  jeopardy, 
therefore,  could  hardly  be  proved  under  a  plea  of  not  guilty, 
for  the  prisoner  might  be  actually  guilty,  and  yet  entitled  to 
set  up  this  defense.  In  some  cases,  in  fact,  such  a  plea  might 
be  interposed  in  conjunction  with  a  plea  of  not  guilty  without 
its  being  inconsistent.  For  instance,  in  the  case  of  Thomp- 
son v.  U.  S.,60  the  judge  discovered  during  the  trial  of  the 


55  Tj.  S.  v.  Kilpatrick  (D.  C.)  16  Fed.  765. 

s«  Section  1026,  Rev.  St.  U.  S.  [1  U.  S.  Comp.  St.  1901,  p.  720]. 
bt  1  U.  S.  Comp.  St.  1901,  p.  722. 

b"  U.  S.  v.  Borger  (C.  C.)  7  Fed.  193 ;   In  re  Smith  (C.  C.)  13  Fed.  25. 
59  Shelp  v.  U.  S.,  81  Fed.  694,  26  C.  C.  A.  570;   Crain  v.  U.  S.,  162 
U.  S.  625,  16  Sup.  Ct.  952,  40  L.  Ed.  1097. 

oo  155  U.  S.  271,  15  Sup.  Ct.  73,  39  L.  Ed.  146. 


§  24)  THE    DEFENSE.  47 

case  that  one  of  the  members  of  the  jury  had  been  on  the 
grand  jury  which  found  the  indictment.  He  thereupon, 
against  the  prisoner's  objection,  discharged  the  jury  and  con- 
tinued the  case  over  for  a  new  trial.  On  the  second  trial  the 
prisoner  pleaded  that  the  proceedings  on  the  first  trial  entitled 
him  to  raise  the  defense  of  once  in  jeopardy.  The  Supreme 
Court  held  that  this  plea  was  not  inconsistent  with  the  plea 
of  not  guilty,  under  the  circumstances  of  that  special  case; 
but  it  also  held  that  the  plea  was  not  sustainable  on  the  facts, 
in  view  of  the  power  of  federal  courts  to  discharge  juries  for 
facts  developed  during  the  trial. 

Plea  of  Former  Jeopardy. 

The  fifth  amendment  to  the  Constitution  provides  that  no 
person  shall  be  subject,  for  the  same  offense,  to  be  twice  put  in 
jeopardy  of  life  or  limb.  This  constitutional  provision  has  been 
the  subject  of  some  interesting  decisions  in  the  federal  courts. 
The  fact  that  a  failure  to  testify  in  certain  cases  before  Con- 
gress is  punishable  as  a  contempt  does  not  make  a  statute 
void  which  also  punishes  it  as  a  misdemeanor,  on  the  ground 
of  being  twice  in  jeopardy,  for  the  proceedings  are  entirely 
different  in  nature.61  On  the  other  hand,  where  a  law  au- 
thorizes a  procedure  in  rem  against  property  for  violation 
of  customs  laws,  and  also  a  direct  criminal  proceeding  against 
the  owner  of  the  property,  the  acquittal  of  the  owner  is  a 
bar  to  a  subsequent  proceeding  against  the  property.62  The 
provision  does  not  invalidate  a  law  authorizing  the  infliction 
of  a  severer  punishment  for  a  second  offense.63  A  party 
who  appeals  from  a  criminal  decision  against  him,  and  secures 
its  reversal,  cannot  on  the  new  trial  plead  the  former  errone- 
ous trial  as  placing  him  in  jeopardy.6*     Where  a  party  is  in- 

•i  In  re  Chapman,  166  U.  S.  661,  17  Sup.  Ct.  677,  41  L.  Ed.  1154. 

«2  Coffey  v.  U.  S.,  116  U.  S.  436,  6  Sup.  Ct.  437,  29  L.  Ed.  6S4. 

«s  Moore  v.  Missouri,  159  U.  S.  673,  16  Sup.  Ct.  179,  40  L.  Ed.  301. 

e*  Ball  v.  U.  S.,  163  U.  S.  662,  16  Sup.  Ct.  1192,  41  L.  Ed.  300; 
Murphy  v.  Massachusetts,  177  U.  S.  155,  20  Sup.  Ct.  639,  44  L.  Ed. 
711. 


48  DISTRICT    COURT — CRIMINAL    JURISDICTION.  (Ch.  3 

dieted  for  murder  on  an  indictment  which,  if  objected  to, 
would  be  fatally  defective,  and  goes  to  trial  on  the  merits, 
without  excepting  to  the  indictment,  and  is  acquitted,  he  can 
plead  once  in  jeopardy  to  a  new  proceeding  by  the  govern- 
ment on  a  correct  indictment.65  Under  the  power  of  the 
federal  courts,  the  act  of  a  court  in  discharging  a  jury  after 
finding  that  one  of  the  jury  had  been  on  the  grand  jury  that 
found  the  indictment — the  discharge  of  the  jury  being  against 
the  protest  of  the  prisoner — does  not  violate  this  provision, 
and  the  prisoner  can  be  tried  a  second  time.66  Parol  evidence 
is  always  admissible,  and  sometimes  necessary,  to  prove  the 
facts  which  are  the  basis  of  this  plea.67 


THE  TRIAL  AND  ITS  INCIDENTS. 

25.  (a)  EVIDENCE— The  accused  is  entitled  to  be  confronted 
with  adverse  -witnesses,  to  compulsory  process  for  his 
own,  and  to  testify  in  his  own  behalf;  but  his  failure 
to  testify  cannot  be  the  subject  of  unfavorable  pre- 
sumptions or  comments. 

(b)  INSTRUCTIONS     AND     EXCEPTIONS     THERETO— In- 

structions from  the  court  propound  the  law  to  the  jury, 
and  should  be  followed,  though  a  verdict  of  acquittal 
in  disregard  of  the  principles  laid  down  will  stand. 
Errors  in  them  prejudicial  to  the  accused  may  be 
availed  of  by  bill  of  exceptions. 

(c)  VERDICT  AND  SENTENCE— The  proper  method  of  set-\ 

ting  aside  a  verdict  and  preventing  sentence  is  by  mo-  \ 
tion  for  new  trial  if  the   errors  complained  of  are  not  j 
of  record,  or  motion  in  arrest  of  judgment  if  they  are 
of  record. 

Evidence. 

The  sixth  amendment  to  the  Constitution  entitles  the  ac- 
cused to  be  confronted  with  the  witnesses  against  him,  and 

so  Ball  v.  U.  S..  163  U.  S.  662,  16  Sup.  Ct.  1192,  41  L.  Ed.  300. 

ee  THOMPSON  v.  U.  S.,  155  U.  S.  271,  15  Sup.  Ct.  73,  39  L.  Ed.  146. 

67  Uurland  v.  U.  S.,  161  U.  S.  306,  16  Sup.  Ct.  508,  40  L.  Ed.  709. 


§  25)  THE    TRIAL   AND   ITS   INCIDENTS.  49 

to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor.  Under  this  provision,  section  878,  Rev.  St.  U.  S.,6S 
provides  that  whenever  any  person  indicted  in  a  court  of  the 
United  States  makes  affidavit  setting  forth  that  there  are  wit- 
nesses whose  evidence  is  material  to  his  defense ;  that  he 
cannot  safely  go  to  trial  without  them ;  what  he  expects  to 
prove  by  each  of  them ;  that  they  are  within  the  district  in 
which  the  court  is  held,  or  within  one  hundred  miles  of  the 
place  of  trial ;  and  that  he  is  not  possessed  of  sufficient  means, 
and  is  actually  unable  to  pay  the  fees  of  such  witnesses — 
the  court  in  term,  or  any  judge  thereof  in  vacation,  may  order 
that  such  witnesses  be  subpcenaed  if  found  within  the  limits 
aforesaid.  In  such  case  the  costs  incurred  by  the  process 
and  the  fees  of  the  witnesses  shall  be  paid  in  the  same  man- 
ner that  similar  costs  and  fees  are  paid  in  case  of  witnesses 
subpcenaed  in  behalf  of  the  United  States. 

This  privilege  of  the  prisoner  to  be  confronted  with  the 
witnesses  has  been  jealously  guarded  by  the  courts  in  criminal 
cases  For  instance,  in  a  proceeding  against  the  receiver  of 
stolen  stamps,  the  record  of  the  conviction  of  the  thief  was 
held  not  admissible  in  evidence  against  the  receiver  of  the 
stamps  for  the  purpose  of  showing  that  the  ownership  of  the 
stamps  was  in  the  United  States,  as  such  record  would  have 
deprived  the  prisoner  of  the  right  of  confronting  witnesses 
on  an  essential  element  of  the  offense.69  For  the  same  rea- 
son, the  testimony  of  one  of  the  government's  witnesses 
who  had  gone  before  the  commissioner  at  the  preliminary 
hearing  could  not  be  proved  against  the  prisoner;  it  appear- 
ing that  the  witness  had  escaped,  and  that  the  defendant  had 
not  in  any  way  participated  in  or  connived  at  his  escape.70 
If,  however,  the  prisoner  himself  is  responsible  for  the  wit- 
ness' absence,  the  testimony  could  be  proved  against  him.71 

88  1  U.  S.  Comp.  St.  1901,  p.  668. 

«8  Kirby  v.  U.  S.,  174  U.  S.  47,  19  Sup.  Ct.  574,  43  L.  Ed.  890. 
to  MOTES  v.  U.  S.,  178  U.  S.  458,  20  Sup.  Ct.  993,  44  L.  Ed.  1150.. 
ti  Reynolds  v.  U.  S.,  98  U.  S.  145,  25  L.  Ed.  244. 
Hughes  Fed.  Jur. — 4 


50  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Cll.  3 

The  constitutional  provision,  however,  does  not  apply  to  wit- 
nesses introduced  by  the  government  in  rebuttal,  as,  from 
the  very  nature  of  the  case,  it  could  not  have  been  intended 
to  apply  to  such  a  case.72  The  provision  does  not  apply 
to  a  civil  suit  for  the  value  of  property  forfeited  under  a  fed- 
eral law,  as  such  procedure  is  not  in  its  nature  a  criminal 
prosecution.78  This  provision  entitling  the  accused  to  be 
confronted  with  the  witnesses  does  not  forbid  the  reception 
in  evidence  of  dying  declarations,  if  they  measure  up  to  the 
requirements  prescribed  by  the  common  law,  and  they  are 
admissible  both  for  and  against  the  accused.74  Another  con- 
stitutional provision  which  is  rigidly  guarded  is  contained 
in  the  fifth  amendment  of  the  Constitution,  which  provides 
that  no  person  shall  be  compelled  in  any  criminal  case  to  be 
a  witness  against  himself.  Under  this  the  courts  have  held 
that  the  confessions  of  the  accused  cannot  be  used  against 
him  unless  it  is  clear  that  they  are  entirely  voluntary,  and 
that  they  have  been  made  without  any  inducement  held  out 
to  the  prisoner,  or  any  improper  influences  brought  to  bear 
upon  him,  though  the  mere  fact  that  they  are  made  while  in 
custody  is  not  in  itself  sufficient  to  prevent  them  from  being 
voluntary.75 

Under  the  decisions  of  the  Supreme  Court,  there  is  a 
strong  presumption  of  innocence,  and  the  prisoner  must  be 
guilty  beyond  a  reasonable  doubt.  Even  the  ordinary  pre- 
sumption of  sanity  does  not  negative  this,  but  the  burden  is 
on  the  government  to  prove  the  crime  beyond  a  reasonable 
doubt,  and  the  capacity  of  the  prisoner  to  commit  crime  is 
part  of  the  elements  of  the  crime.76     The  general  good  charac- 

72  Goldsby  v.  U.  S.,  160  U.  S.  70,  16  Sup.  Ct.  216,  40  L.  Ed.  343. 

7  3  U.  S.  v.  Zucker.  161  U.  S.  475,  16  Sup.  Ct.  641,  40  L.  Ed.  777. 

7*  Mattox  v.  TJ.  S.,  146  U.  S.  140,  13  Sup.  Ct.  50,  36  L.  Ed.  917; 
Carver  v.  U.  S.,  160  U.  S.  553,  16  Sup.  Ct.  388,  40  L.  Ed.  532;  Id., 
164  U.  S.  694,  17  Sup.  Ct.  228,  41  L.  Ed.  602. 

7  5  Pierce  v.  U.  S.,  160  U.  S.  355,  16  Sup.  Ct.  321,  40  L.  Ed.  454; 
Bram  v.  U.  S.,  168  U.  S.  532,  18  Sup.  Ct.  183,  42  L.  Ed.  568. 

7  6  Davis  v.  U.  S.,  160  U.  S.  469,  16  Sup.  Ct.  353,  40  L.  Ed.  499. 


§  25)  THE    TRIAL   AND   ITS   INCIDENTS.  51 

ter  of  the  prisoner  may  be  considered  as  itself  sufficient  to 
raise  a  reasonable  doubt,  even  though  the  rest  of  the  evidence, 
taken  alone,  would  not  have  left  room  for  such  a  doubt.77 
The  flight  of  the  prisoner,  or  concealment  of  suspicious  cir- 
cumstances, is  valuable  as  part  of  the  chain  of  evidence,  but 
is  not  sufficient  alone  to  raise  a  legal  presumption  of  guilt.78 
Where  several  are  indicted  jointly  for  a  conspiracy  or  a  joint 
crime,  the  acts  and  statements  of  the  different  defendants  are 
evidence  against  each  other,  up  to  the  point  when  the  offense 
is  consummated,  or  the  idea  of  committing  the  offense  aban- 
doned, but  not  thereafter.79 

Prisoner  May,  but  Need  Not,  Testify. 

By  the  act  of  March  16,  1878,80  it  is  provided  that  in  the 
trial  of  all  indictments,  informations,  complaints,  and  other 
proceedings  against  persons  charged  with  the  commission 
of  crimes,  offenses,  and  misdemeanors,  in  the  United  States 
courts,  territorial  courts,  and  courts-martial,  and  courts  of 
inquiry,  in  any  state  or  territory,  including  the  District  of 
Columbia,  the  person  so  charged  shall,  at  his  own  request^ 
|  but  not  otherwise,  be  a  competent  witness.  And  his  failure 
to  make  such  request  shall  not  create  any  presumption  against 
him.  The  court  is  extremely  careful,  under  this  statute,  to 
forbid  any  comments  whatever  upon  the  failure  of  the  ac- 
cused to  testify.  In  fact,  in  one  case  the  Supreme  Court 
said  that  all  reference  to  his  failure  to  testify  must  be  rigidly 
excluded.81     When  the  prisoner  does  take  the  witness  stand, 

T7  Edgington  v.  U.  S.,  164  XL  S.  361,  17  Sup.  Ct.  72,  41  L.  Ed.  467. 

7  8  Hickory  v.  TJ.  S.,  160  U.  S.  408,  16  Sup.  Ct.  327,  40  L.  Ed.  474-, 
Alberty  v.  U.  S.,  162  U.  S.  499,  16  Sup.  Ct.  864,  40  L.  Ed.  1051;  Starr 
v.  U.  S.,  164  U.  S.  627,  17  Sup.  Ct.  223,  41  L.  Ed.  577. 

7  9  Logan  v.  TJ.  S.,  144  U.  S.  263,  12  Sup.  Ct.  617,  36  L.  Ed.  429; 
Brown  v.  U.  S.',  150  TJ.  S.  93,  14  Sup.  Ct.  37,  37  L.  Ed.  1010;  St.  Clair 
v.  U.  S.,  154  U.  S.  134,  14  Sup.  Ct.  1002,  38  L.  Ed.  936;  Wiborg  v. 
TJ.  S.,  163  U.  S.  632,  16  Sup.  Ct.  1127,  1197,  41  L.  Ed.  289;  Fitzpat- 
rick  v.  TJ.  S.,  178  U.  S.  304,  20  Sup.  Ct.  944,  44  L.  Ed.  1078 

so  1  TJ.  S.  Comp.  St.  1901,  p.  660. 

«  WILSON  v.  U.  S.,  149  U.  S.  60,  13  Sup.  Ct.  765,  37  L.  Ed.  650. 


52  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Ch.  3 

his  testimony  is  entitled  to  be  considered  fairly;  and  the 
judge  must  not  make  hostile  comments  upon  the  fact  that 
he  is  the  accused,  or  say  to  the  jury  that  such  fact  alone 
should  destroy  or  seriously  impair  the  weight  of  his  testi- 
mony, though  it  can  call  the  attention  of  the  jury  to  the  fact 
that  the  prisoner  would  have  a  strong  motive  to  testify  in 
his  own  interest.  How  far  the  court  can  go  in  this  partic- 
ular is  difficult  to  define.82  If  a  prisoner  waives  his  right  of 
exemption  from  testifying,  and  takes  the  witness  stand,  he 
takes  it  cum  onere,  and  subjects  himself  to  cross-examina- 
tion, like  any  other  witness.88 

The  fact  that  a  decoy  is  used  to  establish  the  guilt  of  a 
prisoner  is  not  sufficient  to  exclude  evidence  of  such  decoy, 
and  the  prisoner  may  be  convicted  upon  it.84 

The  accused  must  be  present  during  the  trial,  and  this  is  a 
right  which  he  cannot  waive.86  This  principle,  however,  ap- 
plies only  to  the  court  of  original  jurisdiction.  When  an 
appellate  court  affirms  the  action  of  the  lower  court,  and 
enters  an  order  to  that  effect,  it  is  not  necessary  for  the 
accused  to  be  present,  even  though  the  order  of  the  appellate 
court  names  the  time  and  place  of  execution,  as  that  is  not 
technically  a  part  of  the  judgment.88 

The  granting  or  refusing  of  a  continuance  is  a  matter  of 
discretion  in  the  trial  court,  and  not  reviewable.87 

82  Hicks  v.  U.  S.,  150  U.  S.  442,  14  Sup.  Ct.  144,  37  L.  Ed.  1137; 
Reagan  v.  U.  S.,  157  U.  S.  301,  15  Sup.  Ct.  610,  39  L.  Ed.  709;  Hick- 
ory v.  U.  S.,  160  U.  S.  408,  16  Sup.  Ct.  327,  40  L.  Ed.  474;  Allison  v. 
U.  S.,  160  U.  S.  203,  16  Sup.  Ct.  252,  40  L.  Ed.  395. 

8  3  Fitzpatrick  v.  U.  S.,  178  U.  S.  304,  20  Sup.  Ct.  944,  44  L-.  Ed. 
1078. 

8*  Andrews  v.  U.  S.,  162  U.  S.  420,  16  Sup.  Ct.  798,  40  L.  Ed.  1023; 
Price  v.  U.  S.,  165  U.  S.  311,'  17  Sup.  Ct.  366,  41  L.  Ed.  727. 

ss  Hopt  v.  Utah,  110  U.  S.  574,  4  Sup.  Ct.  202,  28  L.  Ed.  262. 

»8  Schwab  v.  Berggren,  143  U.  S.  442,  12  Sup.  Ct.  525,  36  L.  Ed. 
218. 

87  Isaacs  v.  U.  S.,  159  U.  S.  487,  16  Sup.  Ct.  51,  40  L.  Ed.  229;  Fi- 
delity and  Deposit  Co.  v.  Lumber  Co.,  189  U.  S.  135,  23  Sup.  Ct  582, 
47  L.  Ed.  744. 


§  25)  THE    TRIAL   AND   ITS   INCIDENTS.  53 

It  is  the  duty  of  the  court  to  curb  any  improper  or  unfair  re- 
marks of  counsel  during  the  progress  of  a  criminal  trial.  For 
instance,  in  the  case  of  Hall  v.  U.  S.,88  the  prosecuting  attor- 
ney, in  commenting  upon  the  fact  which  had  come  out  in  refer- 
ence to  the  character  of  the  prisoner  during  the  trial— that 
he  had  been  tried  for  killing  a  negro  in  Mississippi  and  ac- 
quitted— remarked  that  trials  in  the  state  of  Mississippi  of 
a  white  man  for  killing  a  negro  were  farces.  The  defendant 
excepted  to  these  remarks,  and  the  Supreme  Court  held  that 
they  were  improper,  and  awarded  him  a  new  trial  on  that 
ground 

So,  in  the  case  of  Williams  v.  U.  S.,89  where  the  defendant 
was  being  tried  for  accepting  bribes  to  admit  Chinese  into 
this  country,  the  prosecuting  attorney,  in  answer  to  the  point 
made  by  the  defendant  that  more  had  been  sent  back  during 
his  tenure  of  office  than  before  or  since,  remarked  that,  no 
doubt,  every  Chinese  woman  who  did  not  pay  Williams  was 
sent  back.  Exception  was  taken  to  this  statement  and  over- 
ruled, and  the  Supreme  Court  granted  a  new  trial  on  that, 
among  other  grounds. 

The  proper  method  of  taking  advantage  of  such  points  as 
this  is  by  a  bill  of  exceptions  setting  out  the  necessary  facts 
to  show  its  relevancy  and  the  ruling  of  the  court  thereon.00 

Instructions  to  the  Jury. 

In  criminal  cases  the  jury  should  take  the  law  from  the 
court,  and  should  follow  its  instructions.  They  are  not  judges 
of  both  law  and  fact  under  the  federal  practice,  but,  of  course, 
if  they  disregard  the  instructions,  and  bring  in  a  verdict  of 
acquittal  in  the  teeth  of  the  instructions,  the  government 
has  no  remedy.  Despite  this  result,  if  they  choose  to  disre- 
gard their  duty,  it  is  none  the  less  their  duty  to  take  the  law 
from  the  court,  though  in  a  criminal  case  the  court  cannot 


«8  150  U.  S.  76,  14  Sup.  Ct.  22,  37  L.  Ed.  1003. 
•9  168  U.  S.  382,  18  Sup.  Ct.  92,  42  L.  Ed.  509. 
so  WILSON  v.  U.  S.,  149  U.  S.  60,  13  Sup.  Ct.  765,  37  L.  Ed.  650. 


54  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Cll.  3 

peremptorily  instruct  the  jury  to  bring  |n  a  verdict  of  guilty."1 
In  the  federal  practice  the  judge  can  express  his  opinion  on 
questions  of  fact,  but  in  such  case  he  must  caution  the  jury 
that  his  opinion  is  not  binding  upon  them,  and  that  they 
are  sole  judges  of  the  fact.92  He  must  not,  however,  com- 
ment in  an  argumentative  or  passionate  way  upon  the  facts 
in  such  manner  as  to  prejudice  the  jury  against  the  pris- 
oner; 93  and  it  is  error  in  him  to  comment  on  the  witnesses 
called  to  prove  the  defendant's  character,  and  to  tell  the  jury 
to  disregard  their  evidence,  on  the  ground  that  they  them- 
selves are  lacking  in  character,  for  the  jury  is  just  as  much 
judge  of  the  credibility  of  witnesses  on  the  subject  of  char- 
acter as  on  any  other  subject.94  The  prisoner  must  be 
proved  guilty  beyond  a  reasonable  doubt,  and  it  is  for  the 
court  to  instruct  the  jury  what  constitutes  a  reasonable  doubt, 
though  it  is  difficult  to  define  it  as  an  abstract  proposition.95 
If  the  prisoner  wishes  the  jury  to  be  instructed  on  any  prop- 
osition of  law,  he  must  ask  the  instruction  of  the  court.  It 
is  not  error  in  the  court,  if  it  does  not  instruct  on  all  propo- 
sitions of  law  that  may  be  involved,  when  it  has  not  been 
asked  to  do  so.96  If,  however,  the  legal  proposition  which 
the  prisoner  wishes  to  be  propounded  to  the  jury  is  covered 
by  another  instruction,  or  by  the  general  charge  which  the 
court  gives,  it  is  not  error  in  the  court  to  refuse  to  repeat  it.97 

Error. 

The  proper  method  of  embodying  in  the  record  any  errors 
in  the  court  in  reference  to  the  instructions  is  by  a  bill  of 

si  SPARF  v.  U.  S.,  156  U.  S.  51,  15  Sup.  Ct.  273,  39  L.  Ed.  343. 
»2  Simmons  v.  U.  S.,  142  U.  S.  148,  12  Sup.  Ct.  171,  35  L.  Ed.  968. 

8  3  Starr  v.  U.  S..  153  U.  S.  614,  14  Sup.  Ct.  919,  38  L.  Ed.  841. 
e*  Smith  v.  U.  S.,  161  U.  S.  85,  16  Sup.  Ct.  483,  40  L.  Ed.  626. 

so  Hopt  v.  Utah,  120  U.   S.  430,  7   Sup.  Ct   614,  30  L.  Ed.   708; 
Dunbar  v.  U.  S.,  156  U.  S.  185,  15  Sup.  Ct.  325,  39  L.  Ed.  390. 
so  Goldsby  v.  TJ.  S.,  160  U.  S.  70,  16  Sup.  Ct.  216,  40  L.  Ed.  343. 

9  7  Coffin  v.  U.  S.,  162  U.  S.  664,  16  Sup.  Ct  943,  40  L.  Ed.  1109; 
White  v.  U.  S.,  164  U.  S.  100,  17  Sup.  Ct.  38,  41  L.  Ed.  365;  Humes 
v.  TJ.  S.,  170  U.  S.  210,  18  Sup.  Ct.  602,  42  L.  Ed.  1011. 


§  25)  THE   TRIAL   AND   ITS   INCIDENTS.  55 

exceptions.  In  fact,  this  is  probably  the  most  common  use 
of  a  bill  of  exceptions.  Section  953  of  the  Revised  Statutes,98 
as  last  amended,  provides  that  a  bill  of  exceptions  allowed 
in  any  cause  shall  be  deemed  sufficiently  authenticated  if 
signed  by  the  judge  of  the  court  in  which  the  cause  was  tried, 
or  by  the  presiding  judge  thereof  if  more  than  one  judge 
sat  at  the  trial  of  the  cause,  without  any  seal  of  the  court 
or  judge  annexed  thereto.  And  in  case  the  judge  before 
whom  the  cause  has  heretofore  been  or  may  hereafter  be 
tried  is,  by  reason  of  death,  sickness,  or  other  disability, 
unable  to  hear  and  pass  upon  the  motion  for  a  new  trial  and 
allow  and  sign  said  bill  of  exceptions,  then  the  judge  who 
succeeds  such  trial  judge,  or  any  other  judge  of  the  court  in 
which  the  cause  was  tried,  holding  such  court  thereafter,  if 
the  evidence  in  such  cause  has  been  or  is  taken  in  stenographic 
notes,  or  if  the  said  judge  is  satisfied  by  any  other  means 
that  he  can  pass  upon  such  motion  and  allow  a  true  bill  of 
exceptions,  shall  pass  upon  said  motion  and  allow  and  sign 
such  bill  of  exceptions,  and  his  ruling  upon  such  motion  and 
allowance  and  signing  of  such  bill  of  exceptions  shall  be  as 
valid  as  if  such  ruling  and  allowance  and  signing  of  such  bill 
of  exceptions  had  been  made  by  the  judge  before  whom  such 
cause  was  tried ;  but  in  case  said  judge  is  satisfied  that,  owing 
to  the  fact  that  he  did  not  preside  at  the  trial,  or  for  any 
other  cause,  he  cannot  fairly  pass  upon  said  motion,  and  allow 
and  sign  said  bill  of  exceptions,  then  he  may,  in  his  discre- 
tion, grant  a  new  trial  to  the  party  moving  therefor. 

An  exception  to  an  instruction  or  to  a  charge  must  point 
out  definitely  the  part  excepted  to,  as  it  is  not  the  duty  of 
the  court  to  search  through  a  long  charge  or  instruction 
for  error."  If  the  defendant  asks  a  number  of  instructions 
which  are  refused,  a  general  exception  to  their  refusal  fails 
if  any  one  of  them  is  wrong.     He  must  specify  the  separate 


»8  l  U.  S.  Comp.  St.  1901,  p.  696. 

»8  Edgington  v.  U.  S.,  164  U.  S.  361,  17  Sup.  Ct.  72,  41  L.  Ed.  467. 


5G  DISTRICT    COURT— CRIMINAL   JURISDICTION.  (Ch.  3 

errors  in  connection  with  each  instruction.100  A  bill  of  ex- 
ceptions to  the  refusal  of  the  court  to  grant  the  instructions 
asked  by  the  defendant  should  set  out  the  instructions  actually 
given,  for,  as  the  presumptions  are  in  favor  of  the  correctness 
of  proceedings  in  the  lower  court,  the  appellate  court  might 
otherwise  presume  that  the  instructions  actually  given  cov- 
ered the  points  embodied  in  the  instructions  of  the  ac- 
cused.101 Of  course,  the  instructions  must  be  incorporated 
in  the  bill  of  exceptions  so  as  to  enable  the  appellate  court 
to  see  wherein  there  was  error.102  It  is  allowable  in  federal 
practice  to  join  all  of  the  exceptions  in  one  bill,  but  this  does 
not  dispense  with  the  necessity  of  taking  separate  exceptions 
to  the  separate  rulings  and  pointing  out  the  separate  errors 
relied  on.108 

The  Verdict. 

It  is  allowable  for  the  judge  to  recall  the  jury  and  give 
them  further  instructions,  and  even  to  impress  on  them  the 
importance  of  coming  to  an  agreement,  and  of  making  mutual 
concessions  for  that  purpose.104  When  there  is  more  than 
one  count  in  an  indictment,  the  jury  may  agree  to  bring  in 
a  verdict  on  one  or  more  counts,  though  they  disagree  as 
to  others,  and  where  there  are  separate  defendants  they 
may  acquit  some  and  convict  others;  and,  even  when  the 
case  goes  to  the  appellate  court,  the  court  may  set  aside  the 
verdict  as  to  one  count,  and  let  it  stand  as  to  others.100  A 
verdict  expressly  finding  the  defendant  guilty  on  some  counts, 

100  Thiede  v.  Utah,  159  U.  S.  510,  16  Sup.  Ct.  62,  40  L.  Ed.  237. 
ioi Andrews  v.  U.  S.,  102  U.  S.  420,  16  Sup.  Ct.  798,  40  L.  Ed.  1023. 

102  ciune  v.  U.  S.,  159  U.  S.  590,  16  Sup.  Ct.  125,  40  L.  Ed.  269. 

103  LEES  v.  U.  S.,  150  U.  S.  476,  14  Sup.  Ct.  163,  37  L.  Ed.  1150. 

104  Allis  v.  U.  S.,  155  U.  S.  117,  15  Sup.  Ct.  36,  39  L.  Ed.  91;  Allen 
v.  U.  S.,  104  U.  S.  492,  17  Sup.  Ct.  154,  41  L.  Ed.  528. 

los  St.  Clair  v.  U.  S.,  154  U.  S.  134,  14  Sup.  Ct.  1002,  38  L.  Ed.  936; 
Bucklin  v.  U.  S.,  159  TJ.  S.  680,  16  Sup.  Ct.  182,  40  L.  Ed.  304,  305; 
Ballew  v.  U.  S.,  100  U.  S.  187,  10  Sup.  Ct.  263,  40  L.  Ed.  3S8;'  Sel- 
vester  v.  U.  S.,  170  U.  S.  262,  18  Sup.  Ct.  580,  42  L.  Ed.  1029. 


§  L'5)  THE    TRIAL   AND   ITS    INCIDENTS.  57 

and  not  mentioning  the  other  counts  at  all,  is  equivalent  to 
an  acquittal  on  the  other  counts.106  A  general  verdict  of 
guilty  is  valid  if  any  count  is  good.107  Section  1035,  Rev. 
St.  U.  S.,108  provides  that  in  all  criminal  cases  the  defendant 
may  be  found  guilty  of  any  offense  the  commission  of  which 
is  necessarily  included  in  that  with  which  he  is  charged  in 
the  indictment,  or  may  be  found  guilty  of  an  attempt  to  com- 
mit the  offense  so  charged,  provided  that  such  attempt  be 
itself  a  separate  offense.  Under  this  section  it  is  proper  for 
the  court  to  instruct  the  jury  that  it  should  not  find  the 
prisoner  guilty  of  a  lesser  offense  where  there  is  no  evidence 
whatever  to  show  that  the  lesser  offense  was  actually  com- 
mitted,109 but,  if  there  is  any  evidence  at  all  that  a  lesser 
offense  was  committed,  the  court  must  not  take  this  question 
from  the  jur>;  and  must  not  instruct  them  against  finding  a 
verdict  of  the  lesser  offense.110  The  jury  may,  by  consent 
of  parties  and  in  the  presence  of  the  defendant,  bring  in  a 
sealed  verdict 11X 

New  Trials. 

A  motion  for  a  new  trial  is  addressed  to  the  discretion  of 
the  federal  court,  and  is  not  ordinarily  reviewable,  though, 
where  the  acts  to  which  exceptions  have  been  taken  can  only 
be  availed  of  by  granting  the  accused  a  new  trial,  and  those 
acts  are  properly  excepted  to,  the  mere  fact  that  the  question 
comes  up  in  the  form  of  a  motion  for  a  new  trial  will  not 
prevent  the  appellate  court  from  relieving  the  accused  against 
the  errors  so  committed.112 


loe  Jolly  v.  U.  S.,  170  U.  S.  402,  18  Sup.  Ct  624,  42  L.  Ed.  1085. 
107  Friedenstein  v.  U.  S.,  125  U.  S.  224,  8  Sup.  Ct.  838,  31  L.  Ed. 
736;   Dunbar  v.  U.  S.,  156  U.  S.  185,  15  Sup.  Ct  325,  39  L.  Ed.  390. 
los  l  u.  S.  Comp.  St.  1901,  p.  723. 

109  SPARF  v.  U.  S.,  156  U.  S.  51,  15  Sup.  Ct.  273,  39  L.  Ed.  343. 
no  Stevenson  v.  U.  S.,  162  U.  S.  313,  16  Sup.  Ct.  S39,  40  L.  Ed.  980. 
in  Pounds  v.  U.  S.,  171  U.  S.  35,  18  Sup.  Ct.  729,  43  L.  Ed.  62. 
"t  Mattox  v.  U.  S.,  146  U.  S.  140,  13  Sup.  Ct.  50,  36  L.  Ed.  917. 


58  DISTRICT    COURT — CRIMINAL   JURISDICTION.  (Ch.  3 

Motions  in  Arrest  of  Judgment. 

This  motion  only  lies  for  matter  apparent  on  the  record, 
or  for  the  lack  of  matter  that  ought  to  be  apparent  on  the 
record.  For  mere  matters  of  form,  the  court  will  not  sus- 
tain such  a  motion — even  for  points  which  in  some  cases 
might  have  been  good  on  demurrer.118 

Judgment  and  Sentence. 

The  judgment  should  be  definite,  and  show  that  it  is  based 
upon  the  verdict  and  the  criminal  statute  under  which  the 
prosecution  is  instituted,  though  any  defect  in  this  particular 
may  be  supplied  by  the  full  record,  if  that  itself  is  complete, 
showing  an  indictment,  arraignment,  plea,  trial,  and  con- 
viction.114 It  must  conform  strictly  to  the  statute,  and,  «f 
it  goes  on  and  adds  a  character  of  imprisonment  not  author- 
ized by  law,  it  is  void — as,  for  example,  where  a  judgment 
sentenced  a  person  accused  of  crime  to  imprisonment  for  one 
year  and  the  payment  of  a  fine,  and  then  illegally  added  that 
the  imprisonment  should  take  place  in  a  state  penitentiary, 
the  judgment  was  void,  and  the  prisoner  was  released  on 
habeas  corpus.115  When  a  writ  of  error  is  taken  to  a  judg- 
ment, it  is  merely  stayed,  not  vacated.119  Where  a  prisoner 
is  convicted  on  several  offenses,  the  court  can  impose  a  single 
sentence,  making  it  greater  than  it  would  have  been  on  any 
one.117  The  recent  act  of  January  15,  1897,118  permits  the 
jury  in  certain  capital  cases  to  qualify  their  verdict  by  adding 
thereto,  "Without  capital  punishment,"  and  in  such  case  the 

us  U.  S.  v.  Barnhart  (U.  S.)  17  Fed.  579;  Durland  v.  U.  S.,  161 
U.  S.  306,  16  Sup.  Ct.  508,  40  L.  Ed.  709;  Connors  v.  U.  S.,  158  U. 
S.  408,  15  Sup.  Ct.  951,  39  L.  Ed.  1033;  Ledbetter  v.  U.  S.,  170  U. 
S.  606,  18  Sup.  Ct.  774,  42  L.  Ed.  1162. 

ii*  White  v.  U.  S.,  164  U.  S.  100,  17  Sup.  Ct.  38,  41  L.  Ed.  365; 
Pointer  v.  TJ.  S.,  151  U.  S.  396,  14  Sup.  Ct.  410,  38  L.  Ed.  208. 

us  In  re  Bonner,  151  U.  S.  242,  14  Sup.  Ct.  323,  38  L.  Ed.  149. 

us  Schwab  v.  Berggren,  143  U.  S.  442,  12  Sup.  Ct.  525,  36  L.  Ed. 
218. 

iiT  In  re  De  Bara,  179  U.  S.  316,  21  Sup.  Ct.  110,  45  L.  Ed.  207. 

us  29  Stat.  487,  c.  29  [3  U.  S.  Comp.  St.  1901,  p.  3620]. 


§  25)  THE    TRIAL   AND   ITS   INCIDENTS.  59 

court  cannot  sentence  to  death.  This  statute  has  been  con- 
strued to  give  the  jury  power  to  add  this  qualifying  clause 
in  any  capital  case,  even  when  there  is  no  evidence  whatever 
of  palliating  circumstances,  and  the  court  must  not  take  this 
right  away  from  them  by  instructions.119 

119  Winston  v.  U.  S.,  172  U.  S.  303,  19  Sup.  Ct.  212,  43  L.  Ed.  456. 
See,  also,  on  this  same  statute,  MOTES  v.  U.  S.,  178  U.  S.  458,  20  Sup. 
Ct  993,  44  L.  Ed.  1150. 


60         DISTRICT  COUIiT — MISCELLANEOUS  JURISDICTION.      (Ch.  4: 


CHAPTER  IV. 

THE  DISTRICT  COURT  (Continued)— CRIMINAL  JURISDICTION 
(Continued)— MISCELLANEOUS  JURISDICTION. 

26.  Piracy. 

27.  Penalties,  Forfeitures,  and  Seizures. 

28.  Same — Nature  and  Form. 

29.  Miscellaneous  Jurisdiction. 

30.  Admiralty. 

31.  Same — Nature  and  Form. 

32.  Further  Miscellaneous  Jurisdiction. 

33.  Concerning  Suits  by  and  against  National  Banks. 

PIRACY. 

26.  The  second  clause  of  section  563  of  the  Revised  Statutes* 
gives  the  district  court  jurisdiction  of  piracy  cases 
'when  no  circuit  court  is  held  in  such  district. 

This  applied  to  certain  districts  where  the  district  courts  had 
circuit  court  powers,  but  by  act  of  February  6,  1889, 2  the  cir- 
cuit court  jurisdiction  of  these  courts  was  abolished,  which  has 
the  effect  of  superseding  the  jurisdiction  of  the  district  court 
under  the  above  clause. 


PENALTIES,   FORFEITURES,  AND   SEIZURES. 

27.  The  district  court  has  jurisdiction  of  all  suits  for  penal- 
ties and  forfeitures  incurred  under  any  law  of  the 
United  States,  and  of  all  seizures  on  land  and  on  wa- 
ters not  -within  the  admiralty  and  maritime  jurisdic- 
tion. This  jurisdiction  is  not  exclusive;  nor,  on  the 
other  hand,  is  it  to  be  construed  away  by  statutes  giv- 
ing the  circuit  courts  certain  jurisdiction  in  these 
matters. 


1 1  U.  S.  Comp.  St.  1901,  p.  455. 
ilU.S.  Comp.  St.  1901,  p.  492. 


§  28)  PENALTIES,  FORFEITURES,  AND    SEIZURES.  61 

The  third  clause  of  section  563  gives  the  district  court  juris- 
diction "of  all  suits  for  penalties  and  forfeitures  incurred  under 
any  law  of  the  United  States,"  and  the  eighth  clause  of  the  same 
section  gives  it  jurisdiction  of  all  seizures  on  land  and  on  waters 
not  within  admiralty  and  maritime  jurisdiction.  The  juris- 
diction of  the  district  court  under  this  general  statute  over  for- 
feitures is  not  to  be  construed  away  by  statutes  which  merely 
give  the  circuit  courts  jurisdiction  over  some  forfeiture  cases, 
but  do  not  in  terms  take  away  the  jurisdiction  of  the  district 
court.  For  instance,  it  has  been  held  that  the  district  court 
has  jurisdiction  of  suits  for  penalties  under  the  alien  contract 
law,8  even  though  that  law  provides  that  such  penalties  may  be 
recoverable  "as  debts  of  like  amount  are  now  recovered  in  the 
circuit  courts  of  the  United  States."  This  latter  clause  applies 
simply  to  the  form  of  the  action.4  Nor  will  mere  general  ex- 
pressions in  statutes  take  away  the  exclusive  jurisdiction, of  the 
district  courts.  For  instance,  the  act  of  March  3,  1875,*  giv- 
ing the  circuit  courts  jurisdiction  of  all  civil  suits  between  cer- 
tain parties,  and  involving  a  certain  amount,  was  not  intended 
to  give  the  circuit  court  jurisdiction  of  suits  for  penalties  and 
forfeitures,  even  though  in  one  sense  they  are  civil  suits.8 

SAME— NATURE  AND  FORM. 

28.  These  proceedings  are  against  the  offender  or  against  the 
property  or  hoth.  Suits  for  penalties  are  in  the  form 
of  an  ordinary  common-law  action  on  a  money  de- 
mand. Suits  for  forfeitures  against  the  property  are 
in  the  form  of  an  information  in  rem.  They  partake 
hoth  of  a  civil  and  a  criminal  nature,  possessing  cer- 
tain attributes  of  each. 

a  1  U.  S.  Comp.  St.  1901,  p.  1290. 

*  LEES  v.  UNITED  STATES,  150  U.  S.  476,  14  Sup.  Ct  163,  37  L. 
Ed.  1150. 

*  1  U.  S.  Comp.  St.  1901,  p.  508. 

b  U.  S.  v.  MOONEY  (C.  C.)  11  Fed.  476 ;  Id.,  116  U.  S.  104,  6  Sup.  Ct. 
304,  29  L.  Ed.  550;  Helwig  v.  U.  S.,  188  U.  S.  605,  23  Sup.  Ct.  427, 
47  L.  Ed.  614. 


62         DISTRICT   COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  4 

Penalties  and  forfeitures  are  common  all  through  the  federal 
statutes,  in  connection  with  the  navigation  laws,  the  customs 
laws,  the  internal  revenue  laws,  etc.  They  usually  prescribe 
a  penalty  against  the  offender,  and,  where  the  offense  is  suf- 
ficiently grave,  a  forfeiture  of  the  property  engaged  in  the  vio- 
lation of  law.  In  some  of  the  statutes,  the  property  itself  is 
treated  as  the  offender,  independent  of  the  question  of  owner- 
ship. In  sucri  case  the  procedure  against  the  property  as  an 
offending  thing  is  absolutely  independent  of  the  procedure 
against  the  owner.  In  fact,  it  is  possible  for  the  owner  to  be 
acquitted  and  the  property  condemned  in  such  case.  Other 
proceedings  make  the  act  of  the  owner  and  the  forfeiture  of 
the  property  so  interwoven  that  the  one  is  an  incident  of  the 
other.  The  special  statute  must  be  referred  to  in  each  case,  in 
order  to  ascertain  whether  the  case  falls  under  one  or  the 
other  of  these  classes.  It  has  been  held  that  under  the  first 
of  these  two  clauses  "suits  for  penalties  and  forfeitures"  mean 
civil  actions.6  Under  section  732  of  the  Revised  Statutes  7 
all  pecuniary  penalties  and  forfeitures  may  be  sued  for  and 
recovered,  either  in  the  district  where  they  accrue,  or  in  the 
district  where  the  offender  is  found ;  and,  under  section  734,8 
proceedings  on  seizures,  for  forfeiture  under  any  law  of  the 
United  States,  made  on  the  high  seas,  may  be  prosecuted  in  any 
district  into  which  the  property  so  seized  is  brought,  and  pro- 
ceedings instituted.  Proceedings  on  such  seizures  made  within 
any  district  shall  be  prosecuted  in  the  district  where  the  seiz- 
ure is  made,  except  in  cases  where  it  is  otherwise  provided. 

Suits  for  penalties  are  in  the  form  of  an  ordinary  common- 
law  action  on  a  money  demand.  Suits  for  forfeitures  against 
the  property  are  in  the  form  of  an  information  in  rem.  These 
procedures   partake   both   of  a   civil   and   a   criminal   nature. 

e  The  Little  Ann,  Fed.  Cas.  No.  8,397 ;  U.  S.  v.  Mann,  Fed.  Cas. 
No.  15,718. 

7  1  U.  S.  Comp.  St.  1901,  p.  585. 
•  1  U.  S.  Comp.  St  1901,  p.  5S0. 


§  28)  PENALTIES,  FORFEITURES,  AND    SEIZURES.  63 

Where  no  fine  or  imprisonment  is  imposed,9  they  are  civil 
in  their  form — so  much  so,  indeed,  that  the  government  has  an 
appeal.  But  they  are  so  far  criminal  in  their  nature  that  a  de- 
fendant cannot  be  required  to  give  evidence  against  himself.10 
On  the  other  hand,  in  a  civil  action  sounding  in  dollars  and 
cents,  the  evidence  can  be  taken  by  deposition,  and  the  consti- 
tutional provision  in  reference  to  confronting  the  accused  with 
witnesses  does  not  prevent  its  being  so  taken.11  Where  the 
act  of  the  owner  is  so  connected  with  the  illegal  use  of  the 
property  as  to  make  it  an  essential  element  of  the  offense,  his 
acquittal  would  bar  a  procedure  in  rem  against  the  property.12 
These  cases  are  triable  by  a  jury,  but  the  parties  may  waive 
a  jury.13  Where  the  violation  of  law  by  the  thing  itself  is 
independent  of  the  act  of  the  owner,  the  procedure  against  the 
thing  and  the  prosecution  of  the  owner  are  entirely  distinct, 
and  a  forfeiture  of  the  thing  may  be  decreed  without  a  con- 
viction of  the  owner.14  The  procedure,  in  case  of  a  libel  of 
information,  which  is  by  nature  largely  an  admiralty  proceed- 
ing, or  at  least  based  on  the  practice  of  the  admiralty  court, 
is  required  by  admiralty  rule  22  of  the  Supreme  Court  to  state 
the  place  of  seizure,  whether  on  land  or  on  the  high  seas,  or 
on  navigable  waters  within  the  admiralty  and  maritime  juris- 
diction of  the  United  States,  and  the  district  within  which  the 
property  is  brought,  and  where  it  then  is.  The  information 
or  libel  of  information  shall  also  propound  in  distinct  arti- 
cles the  matters  relied  on  as  grounds  or  causes  of  forfeiture, 
and  aver  the  same  to  be  contrary  to  the  form  of  the  statute  or 
statutes  of  the  United  States  in  such  case  provided,  as  the  case 
may  require,  and  shall  conclude  with  a  prayer  of  due  process  to 
enforce  the  forfeiture,  and  give  notice  to  all  persons  concerned 

»  Friedenstein  v.  TJ.  S.,  125  U.  S.  224,  8  Sup.  Ct.  838,  31  L.  Ed.  736. 
io  LEES  v.  U.  S.,  150  U.  S.  476,  14  Sup.  Ct.  163,  37  L.  Ed.  1150. 
ii  U.  S.  v.  Zucker,  161  U.  S.  475,  16  Sup.  Ct.  641,  40  L.  Ed.  777. 
12  Coffey  v.  U.  S.,  116  U.  S.  436,  6  Sup.  Ct.  437,  29  L.  Ed.  684. 
is  Henderson's  Distilled  Spirits,  14  Wall.  44,  20  L.  Ed.  815. 
i*  TJ.  S.  v.  The  Three  Friends,  166  U.  S.  1,  17  Sup.  Ct.  4U5,  41  L. 
Ed.  897. 


G4         DISTRICT   COURT — MISCELLANEOUS  JURISDICTION.       (Cll.  4 

in  interest  to  appear  and  show  cause  at  the  return  day  of  the 
process  why  the  forfeiture  should  not  be  decreed.  By  section 
923  of  the  Revised  Statutes,15  in  such  cases  fourteen  days' 
notice  of  the  seizure  and  libel  shall  be  given  by  causing  the 
substance  of  the  libel,  with  the  order  of  the  court  thereon,  set- 
ting forth  the  time  and  place  appointed  for  trial,  to  be  inserted 
in  some  newspaper  published  near  the  place  of  seizure,  and  by 
posting  up  the  same  in  the  most  public  manner,  for  the  space 
of  fourteen  days,  at  or  near  the  place  of  trial,  and  proclama- 
tion shall  be  made  in  such  manner  as  the  court  shall  direct; 
and,  if  no  person  appears  and  claims  the  property  or  bonds  it, 
the  court  can  proceed  to  hear  and  determine  the  cause  accord- 
ing to  law. 

By  section  1047  of  the  United  States  Revised  Statutes,18 
suits  for  penalties  or  forfeitures  are  limited  to  five  years,  ex- 
cept where  there  are  special  provisions  in  special  cases. 

It  is  important  to  bear  in  mind  the  well-established  provi- 
sion of  criminal  law  that  statutory  forfeitures,  unlike  common- 
law  forfeitures,  take  effect,  not  from  the  date  of  sentence,  but 
from  the  commission  of  the  offense,  even  as  against  an  inno- 
cent purchaser.17 

Powers  of  Secretary  of  Treasury. 

Under  sections  5293  and  5294  of  the  Revised  Statutes,18  the 
Secretary  of  the  Treasury  is  given  a  large  discretion  in  remit- 
ting penalties  incurred  where  no  intent  to  violate  the  law  seems 
to  exist;  and  it  is  but  just  to  the  department  of  the  treasury 
to  say  that,  in  the  exercise  of  this  discretion,  great  generosity 
and  mercy  have  been  shown,  as  against  parties  innocent  of  any 
intent  to  violate  the  law.  This  power  may  be  exercised  by  the 
Secretary  of  the  Treasury  even  in  suits  brought  by  informers 
before  actual  trial  and  judgment,  and  these  sections  giving  him 

io  1  U.  S.  Comp.  St.  1901,  p.  686. 
ie  1  U.  S.  Comp.  St.  1901,  p.  727. 

17  Henderson's  Distilled  Spirits,  14  Wall.  44,  20  L.  Ed.  815. 

18  3  U.  S.  Comp.  St.  1001.  pp.  3605  3607.  Some  of  these  powers 
are  now  vested  in  the  Department  of  Commerce  and  Labor.  U.  S. 
Comp.  St.  Supp.  1903,  p.  48. 


§  29)  MISCELLANEOUS   JURISDICTION.  05 

this  power  are  not  unconstitutional,  as  violating  the  pardoning 
power  of  the  President.19 


MISCELLANEOUS  JURISDICTION. 

29.  The  district  court  has  jurisdiction  in  the  following  mis- 
cellaneous cases: 

(a)  Common-law  suits  l-rought  by  the  United  States  or  its 
officers. 

(b>    Chancery  suit."  to  enforce  lien  for  taxes. 

(c)  Suits  for  the  recovery  of  any  forfeiture)  or  damages  un- 

der section  3490. 

(d)  Causes  of  action  arising  under  the  postal  laws. 

Common-Law  Suits  Brought  by  the  United  States  or  Its  Of- 
ficers. 
The  fourth  paragraph  of  section  563  gives  the  district  court 
jurisdiction  "of  all  suits  at  common  law  brought  by  the  United 
States,  or  by  any  officer  thereof  authorized  by  law  to  sue." 
An  action  of  debt  for  penalties  in  the  name  of  the  United  States 
is  sustainable  under  this  section,  as  well  as  under  the  preced- 
ing.20 So,  also,  an  action  on  a  postmaster's  bond.21  So,  also, 
an  action  of  trover  by  a  United  States  marshal  for  money  held 
by  him  in  that  capacity.22  Suits  by  receivers  of  national 
banks,  to  realize  the  assets  of  the  bank  and  for  other  purposes, 
are  also  sustainable  under  this  section.23  These  suits  do  not 
depend  either  on  amount  or  on  the  question  of  citizenship  of 
the  parties.24 

is  The  Laura,  114  U.  S.  411,  5  Sup.  Ct  881,  29  L.  Ed.  147. 

20  Jacob  v.  U.  S.,  Fed.  Cas.  No.  7,157. 

2i  Postmaster  General  v.  Early,  12  Wheat.  136,  6  L.  Ed.  577. 

22  Henry  v.  Sowles  (D.  C.)  28  Fed.  481. 

23  Piatt  v.  Beach,  Fed.  Cas.  No.  11,215;  Frelinghuysen  v.  Bald- 
win (TJ.  S.)  12  Fed.  395;  Lake  Nat.  Bank  v.  Bank,  78  Fed.  517,  24 
C.  C.  A.  195;  Thompson  v.  Poole  (C.  C.)  70  Fed.  725;  Auten  v. 
Bank,  174  U.  S.  125,  19  Sup.  Ct.  628,  43  L.  Ed.  920. 

2*  U.  S.  v.  SAYWARD,  160  U.  S.  493,  16  Sup.  Ot.  371,  40  L.  Ed.  508 ; 
Farmers'  Nat.  Bank  v.  McElhinney  (D.  C.)  42  Fed.  801. 
Hughes  Feo.  Jur. — 5 


66         DISTRICT   COURT — MISCELLANEOUS   JURISDICTION.       (Ch.  4 

Chancery  Suits  to  Enforce  Lien  for  Taxes. 

This  is  the  fifth  clause  of  section  563.  Section  3207  of  the 
Revised  Statutes  "  gives  the  right  to  file  a  bill  in  chancery 
to  enforce  tax  liens  on  real  estate;  and  section  3213  2e  gives 
a  right  of  action  to  the  United  States  in  any  proper  form  of 
action  or  by  any  appropriate  form  of  proceeding,  qui  tarn  or 
otherwise,  before  any  circuit  or  district  court  of  the  United 
States  for  the  district  within  which  a  fine  or  forfeiture  may  have 
been  incurred,  for  the  recovery  of  forfeitures  under  the  tax 
laws  connected  with  the  internal  revenue ;  and  the  same  sec- 
tion gives  a  right  of  action  for  taxes  in  the  district  where  the 
liability  to  the  tax  is  incurred,  or  where  the  party  who  owes 
the  tax  resides  at  the  commencement  of  the  action.27 

Suits  for  the  Recovery  of  Any  Forfeiture  or  Damages  under 
Section  3490. 
This  constitutes  the  sixth  clause  of  section  563.  Section 
3490  referred  to  under  this  clause  28  prescribes  a  forfeiture  for 
any  of  the  acts  prohibited  by  section  5438,  and  section  5438  29 
relates  to  obtaining  money  from  the  government  in  various 
fraudulent  ways.  Suits  under  this  provision,  therefore,  though 
civil  in  form,  are  criminal  in  their  nature.30 

Causes  of  Action  Arising  under  the  Postal  Laws. 
This  constitutes  the  seventh  clause  of  section  563. 


2B  2  U.  S.  Comp.  St.  1901,  p.  2081. 
ze  2  U.  S.  Comp.  St.  1901,  p.  2083. 

27  TJ.  S.  v.  Mackoy,  2  Dill.  299,  Fed.  Cas.  No.  15,696;    U.  S.  v. 
Rindskopf,  8  Biss.  507,  Fed.  Cas.  No.  16,166. 

28  2  U.  S.  Comp.  St.  1901,  p.  2328. 
2»  3  U.  S.  Comp.  St.  1901,  p.  3674. 

•0  D.  S.  v.  Shapleigh,  54  Fed.  126,  4  C.  C.  A.  237. 


§3  30-31)  ADMIRALTY. 


ADMIRALTY. 

30.  Jurisdiction  in  matters  of  admiralty  and  maritime  law  is 
vested  in  the  district  court,  and  this  jurisdiction  is 
made  exclusive,  except  'where  expressly  specified  to  the 
contrary.  This  is  an  important  class  of  jurisdiction  of 
the  district  courts. 


SAME— NATURE  AND  FORM. 

31.  The  admiralty  procedure  is  in  rem  or  in  personam,  and 
extends  to  matters  in  contract  and  in  tort  coming  un- 
der the  admiralty  and  maritime  law.  The  practice  is 
largely  governed  by  a  set  of  rules  prescribed  by  the 
Supreme  Court  for  the  purpose. 

The  eighth  clause  of  section  563  gives  the  court  jurisdiction 
of  all  civil  causes  of  admiralty  and  maritime  jurisdiction,  sav- 
ing to  suitors  in  all  cases  the  right  of  a  common-law  remedy 
where  the  common  law  is  competent  to  give  it,  and  of  all  seiz- 
ures on  land  and  on  waters  not  within  admiralty  and  maritime 
jurisdiction,  and  the  jurisdiction  of  the  district  court  over  ad- 
miralty causes  is  made  exclusive  except  where  expressly  speci- 
fied to  the  contrary.  This  clause  also  gives  the  district  court 
exclusive  jurisdiction  of  prizes,  except  as  named  in  the  sixth 
paragraph  of  section  629. 

The  admiralty  and  maritime  jurisdiction  of  the  district  courts 
— at  least  of  those  district  courts  on  the  seacoast  or  important 
navigable  waters — is  probably  its  most  important  class  of 
jurisdiction.  The  procedure  in  admiralty  is  sui  generis,  con- 
sisting of  actions  in  rem  and  also  actions  in  personam.  Those 
in  rem  are  against  the  vessel  or  thing  itself.  Those  in  per- 
sonam are  ordinary  civil  suits  on  the  admiralty  side  of  the  court 
against  individuals  for  admiralty  causes  of  action. 

Cases  of  admiralty  cognizance  are  either  in  contract  or  in 
tort.  Those  in  contract  depend  upon  the  character  of  the 
cause  of  action,  those  being  of  admiralty  cognizance  which  are 


68         DISTRICT  COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  4 

marine  in  their  nature.  Those  in  tort  depend  upon  the  locality, 
admiralty  having  jurisdiction  of  such  actions  where  they  arise, 
and  become  consummate  on  navigable  waters  within  the  juris- 
diction of  the  admiralty  courts.  Illustrations  of  admiralty 
causes  of  action  in  contract  are  suits  against  vessels  for  sup- 
plies and  repairs,  suits  under  charter  parties,  and  suits  on  bills 
of  lading;  and  illustrations  of  actions  of  tort  in  the  admiralty 
are  collisions  between  vessels,  and  personal  injuries  inflicted 
by  negligence  on  navigable  waters.  The  pleading  which  sets 
out  the  cause  of  action  is  called  a  libel,  and  the  defense  is  made 
by  answer  or  exception.  In  an  action  in  rem,  the  property 
itself  is  seized,  and,  if  not  bonded,  the  libelant  has  a  decree  of 
sale  of  the  property  entered  by  the  court,  and  it  is  sold  by  the 
marshal,  and  the  proceeds  applied  to  pay  the  claims  asserted 
against  it.  The  procedure  and  practice  in  the  admiralty  courts 
are  regulated  by  the  rules  in  admiralty  prescribed  by  the  Su- 
preme Court  for  the  government  of  admiralty  causes.  They 
provide  a  simple  and  excellent  system  of  pleading,  by  which 
causes  are  quickly  matured,  and  substantial  justice  adminis- 
tered. 

Most  of  these  admiralty  causes  of  action  are  of  a  nature  that 
gives  the  common-law  courts  also  jurisdiction ;  that  is,  jurisdic- 
tion over  the  cause  of  action,  but  not  jurisdiction  over  the  pro- 
cedure. For  instance,  in  a  case  of  collision  between  two 
vessels,  the  injured  party  can  proceed  by  a  libel  in  rem  against 
the  other  vessel,  and  the  district  court  alone  has  jurisdiction  of 
such  a  pleading.81  But  on  the  other  hand,  as  a  collision  is  a 
tort  at  common  law,  if  due  to  negligence,  the  injured  party  can 
bring  an  ordinary  action  of  tort  in  a  common-law  court,  or,  if 
the  citizenship  and  amount  are  requisite,  he  can  bring  an  ordi- 
nary action  of  tort  in  the  circuit  court  of  the  United  States  on 
its  common-law  side.32 


8i  The  Glide,  167  U.  S.  606,  17  Sup.  Ct.  930,  42  L.  Ed.  296. 

sz  The  jurisdiction  of  the  admiralty  courts  is  so  extensive  that  it 
is  impossible  in  this  treatise  to  discuss  it.  Reference  is  made  to  the 
author's  treatise  on  Admiralty,  published  in  the  year  1901. 


jjjj  32-33)      FUliTHER   MISCELLANEOUS   JURISDICTION.  G9 


FURTHER  MISCELLANEOUS  JURISDICTION. 

32.  The  district  court  has  further  miscellaneous  jurisdiction 

including  the  following  matters: 

(a)  Prize  Causes. 

(b)  Suits  for  Drawback  of  Duties. 

(c)  Suits  under  the  Civil  Rights  Amendments  and  Statutes. 

(d)  Suits  under  Immigration  Laws. 

CONCERNING  SUITS   BY  AND  AGAINST  NATIONAL 
BANKS. 

33.  The    former    jurisdiction    of    the    district    court    in    thesej 

matters  is   now  practically  abolished. 

Prize  Causes. 

Under  the  eighth  and  ninth  clauses,  the  district  court  has 
jurisdiction  of  these  causes  also.  The  procedure  on  prize 
causes  is  the  admiralty  procedure,  even  though  it  may  be  taken 
in  the  circuit  court.33 

Suits  for  Drawback  of  Duties. 

Jurisdiction  of  these  suits  is  conferrred  on  the  district  court 
by  the  tenth  clause  of  section  563.34 

Suits  under,  the  Civil  Rights  Amendments  and  Statutes. 

These  are  conferred  on  the  district  court  by  sections  11,  12, 
13,  and  14  of  section  563.  These  acts  have  been  the  subject 
of  some  interesting  decisions  by  the  Supreme  Court.  It  has 
been  held  that  the  exclusion  of  colored  men  from  juries  is  a 
violation  of  these  acts,  and  gives  a  colored  man  who  is  being 
proceeded  against  a  good  ground  of  exception.36     The  mere 

«»  Coffey  v.  U.  S.,  116  U.  S.  427,  6  Sup.  Ct.  432,  29  L.  Ed.  681; 
Id.,  117  U.  S.  233,  6  Sup.  Ct.  717,  29  L.  Ed.  890. 

a*  See,  on  this  subject,  sections  3038-3040,  2  U.  S.  Gomp.  St.  1901, 
p.  1997. 

as  Ex  parte  Virginia,  100  U.  S.  339,  25  L.  Ed.  676;  Neal  v.  Dela* 
ware,  103  U.  S.  370,  26  L.  Ed.  567;  Carter  v.  Texas,  177  U.  S.  442, 
20  Sup.  Ct.  687,  44  L.  Ed.  839. 


70         DISTRICT   COURT — MISCELLANEOUS  JURISDICTION.       (Cll.  4 

fact,  however,  of  separating  the  races,  is  not  a  violation  of  this 
act,  provided  equal  accommodations  are  furnished  to  both. 
This  applies  to  their  separation  in  public  schools  or  on  public 
conveyances.30  And  it  has  also  been  held  that  a  statute  which 
does  not  in  terms  discriminate  against  the  colored  race  or  de- 
prive them  of  the  right  to  vote  is  not  void  on  that  account 
where  that  result  is  merely  incidental,  and  where  it  does  not 
appear  that  there  is  any  purpose  in  the  administration  of  the 
law  to  discriminate  against  them.37 

Former  Jurisdiction  in  Suits  by  and  against  National  Banks. 
Now  Abolished. 
The  fifteenth  clause  of  section  563  gives  the  district  court 
jurisdiction  of  all  suits  by  or  against  any  association  established 
under  any  law  providing  for  national  banking  associations  with- 
in the  district  for  which  the  court  is  held.  Until  the  act  of 
July  12,  1882,  the  district  court  had  jurisdiction  of  suits  by  or 
against  national  banks,  regardless  of  either  the  question  of  citi- 
zenship or  of  the  amount  involved;88  but  the  act  of  July  12, 
1882, 30  which  greatly  changed  the  original  national  banking 
law,  contained  a  proviso  in  section  4  that  the  jurisdiction  for 
suits  hereafter  brought  by  or  against  any  association  estab- 
lished under  any  law  providing  for  national  banking  associa- 
tions, except  suits  between  them  and  the  United  States  or  its 
officers  and  agents,  shall  be  the  same  as,  and  not  other  than, 
the  jurisdiction  for  suits  by  or  against  banks  not  organized 
under  any  law  of  the  United  States  which  do  or  might  do  bank- 
ing business  where  such  national  banking  association  may  be 
doing  business  when  such  suits  may  be  begun.     This  was  fol- 

86  Davenport  v.  Cloverport  (D.  C.)  72  Fed.  689;  Cumming  v. 
Board,  175  U.  S.  528,  20  Sup.  Ct.  197,  44  L.  Ed.  262;  Plessy  v.  Fergu- 
son, 163  U.  S.  537,  16  Sup.  Ct.  1138,  41  L.  Ed.  256. 

bt  Williams  v.  Mississippi,  170  U.  S.  213,  18  Sup.  Ct.  583,  42  L. 
Ed.  1012.  See,  in  general,  Civil  Rights  Cases,  109  TJ.  S.  3,  3  Sup. 
Ct.  18,  27  L.  Ed.  835. 

ss  Kennedy  v.  Gibson,  8  Wall.  498.  19  L.  Ed.  476. 

3  9  22  Stat.  162,  c.  290,  3  U.  S.  Coinp.  St.  1901,  p.  3457. 


§§  32-33)      FURTHER  MISCELLANEOUS  JURISDICTION.  71 

lowed  up  by  the  act  of  March  3,  1887,  as  amended  August 
13,  1888,  the  fourth  section  of  which  provides :  "All  national 
banking  associations  established  under  the  laws  of  the  United 
States  shall,  for  the  purposes  of  all  actions  by  or  against  them, 
real,  personal,  or  mixed,  and  all  suits  in  equity,  be  deemed  citi- 
zens of  the  states  in  which  they  are  respectively  located;  and 
in  such  cases  the  circuit  and  district  court  shall  not  have  juris- 
diction other  than  such  as  they  would  have  in  cases  between 
individual  citizens  of  the  same  state.  The  provisions  of  this 
section  shall  not  be  held  to  affect  the  jurisdiction  of  the  courts 
of  the  United  States  in  cases  commenced  by  the  United  States 
or  by  direction  of  any  officer  thereof,  or  cases  for  winding  up 
the  affairs  of  any  such  bank."  40  The  effect  of  these  two  acts 
is  practically  to  supersede  the  grant  of  jurisdiction  to  the  dis- 
trict courts  under  the  fifteenth  clause  of  section  563.  Suits 
between  a  national  bank  and  a  citizen  of  its  own  state  can  no 
longer  be  brought  in  the  federal  courts,  unless  there  is  some 
other  ground  of  jurisdiction  involved  in  the  suit,  such  as  the 
existence  of  a  federal  question.41  Of  course,  if  the  court 
would  have  jurisdiction  of  the  cause  of  action  provided  the 
national  bank  was  a  state  bank,  it  would  still  have  jurisdiction, 
but  these  cases  would  go  into  the  circuit  court  on  the  ground 
of  diversity  of  citizenship  or  the  existence  of  a  federal  ques- 
tion;   these  grounds  being  discussed  in  another  connection.42 

Suits  by  Aliens  for  Tort,  and  Suits  against  Consuls  or  Vice 
Consuls. 
Jurisdiction  of  these  cases  is  conferred  on  the  district  court 
by  the  sixteenth  and  seventeenth  clauses  of  section  563.  They 
are  maintainable  against  a  consul  under  these  provisions,  even 
though  the  consul  may  be  a  citizen  of  the  United  States  ap- 
pointed as  consul  by  some  foreign  power.43 

40  l  u.  S.  Comp.  St.  1901,  p.  514. 

4i  National  Bank  of  Jefferson  v.  Fore  (C.  C.)  25  Fed.  209;    Union 
Nat.  Bank  v.  Miller  (C.  C.)  15  Fed.  703. 

42  Leather  Manufacturers'  Nat.  Bank  v.  Cooper,  120  TJ.  S.  778,  7 
Sup.  Ct.  777,  30  L.  Ed.  816. 

43  Baiz,  In  re,  135  TJ.  S.  403,  10  Sup.  Ct.  854,  34  L.  Ed.  822.     See, 


72  DISTRICT  COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  4 

Suits  tinder  Immigration  Laws. 

Both  the  district  and  circuit  courts  have  jurisdiction  over 
all  causes,  civil  and  criminal,  arising  under  the  immigration 
acts  of  March  3,  1891,44  and  the  act  of  March  3,  1903." 

in  general,  Iasigi  v.  Vande  Carr,  166  U.  S.  391,  17  Sup.  Ct.  595,  41 
L.  Ed.  1045;  Bors  v.  Preston,  111  U.  S.  261,  4  Sup.  Ct.  407,  28  L. 
Ed.  419. 

«  26  Stat.  1084,  c.  551,  1  U.  S.  Comp.  St.  1901,  p.  1294. 

46  32  Stat.  1213,  c.  1012,  U.  S.  Comp.  St.  Supp.  1903,  p.  170. 


§§  34-35)  DISTRICT    COURT — BANKRUPTCY.  73 

CHAPTER  V. 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY. 

84.  Bankruptcy — Jurisdiction  Over. 

35.  Same — History  of  tlie  Legislation. 

86  Same — Policy  of  the  Legislation. 

37.  Constitutionality  of  Bankrupt  Legislation. 

38.  Same — Effect  of  Federal  on  State  Legislation. 

39.  The  Bankruptcy  Courts. 

40.  Parties — Voluntary  Proceedings. 
41  Same — Involuntary  Proceedings. 
42.  Pleadings. 

IS.     Acts  of  Bankruptcy — Definition  and  Enumeration. 

44.  Same — Transfers  to  Hinder,  Delay,  and  Defraud  Creditors. 

45.  Same — Illegal  Preferences 

4C.  Same — Suffering  Preferences  by  Legal  Process. 

i"  Same — Assignment  as  an  Act  of  Bankruptcy. 

48.  Same- -Admission  of  Insolvency  In  Writing. 

49.  Time  of  Filing  Petition. 

BANKRUPTCY— JURISDICTION  OVER. 

31.  The  district  court  is  the  principal  tribunal  exercising  su- 
pervision over  matters  of  bankruptcy. 

SAME— HISTORY  OF  THE  LEGISLATION. 

38.  Several  United  States  bankruptcy  statutes  have  been  in 
force  at  different  intervals,  varying  somewhat  in  their 
nature  according  to  the  exigencies  of  the  period.  The 
present  statute  on  the  subject  was  put  into  force  by 
the  act  of  July  1,  1898.  • 

•  U.  S.  Comp.  St.  1901,  p.  3418. 


74  DISTRICT    COURT — BANKRUPTCY.  (Cll.  5 


SAME— POLICY  OF  THE  LEGISLATION. 

36.  The  general  policy  of  bankruptcy  laws  is  at  once  the  re- 
lief of  honest  but  unfortunate  debtors,  by  enabling 
them  to  start  life  anew,  relieved  of  a  load  of  indebted- 
ness which  would  otherwise  crush  their  future,  and 
again  the  protection  of  the  bankrupt's  creditors,  who 
find  a  remedy  in  its  provisions  for  the  better  enforce- 
ment of  their  claims.  The  policy  of  these  laws  has 
varied  according  as  they  have  had  most  in  view  the 
protection  of  the  creditor  or  the  relief  of  the  debtor. 
The  necessity  for  uniform  legislation  on  this  subject 
vindicates  the  wisdom  of  vesting  the  national  govern- 
ment with  the  power  to  regulate  the  question. 

Section  563  of  the  United  States  Revised  Statutes  provides 
that  the  district  courts  are  constituted  courts  of  bankruptcy, 
and  shall  have  in  their  respective  districts  original  jurisdiction 
in  all  matters  and  proceedings  in  bankruptcy.  This  makes 
the  district  court  the  real  bankruptcy  court,  though  the  circuit 
court  has  jurisdiction  of  various  proceedings  growing  out  of 
the  bankruptcy  law,  as  will  be  seen  in  the  development  of  the 
subject. 

Article  1  of  section  8  of  the  Constitution  conferred  power 
upon  Congress,  among  other  things,  to  establish  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  States. 
This  power  was  not  exercised  by  Congress  until  1800,  when 
the  first  bankruptcy  law  was  passed.  It  remained  in  force  but 
a  short  time.  In  1841  another  bankrupt  law  was  passed,  which 
also  was  repealed  very  shortly.  Soon  after  the  Civil  War,  and 
largely  in  consequence  of  the  financial  misfortunes  which  had 
been  caused  by  it,  the  act  of  March  2,  1867,  was  passed.  This 
law  remained  in  force  for  over  twenty  years,  when  it,  too,  was 
repealed.  Then  for  a  period  of  about  twenty  years  no  national 
bankrupt  law  was  in  force,  but  the  act  of  July  1,  1898,  put  into 
force  the  present  statute  on  the  subject. 

Bankrupt  laws  are  based  upon  sound  reasons  of  public  policy, 
and  the  importance  of  having  uniform  laws  of  this  character 


§  36)  POLICY    OF   LEGISLATION.  To 

throughout  the  United  States  was  the  main  reason  which  in- 
duced the  authors  of  the  national  Constitution  to  confide  that 
power  to  Congress  instead  of  the  states.  By  a  national  bank- 
rupt law  the  rights  of  creditors  can  best  be  protected  against 
frauds  of  dishonest  debtors  and  partial  state  legislation  in  fa- 
vor of  the  resident  debtor  against  the  nonresident  creditor. 
On  the  other  hand,  a  national  bankrupt  law,  as  distinguished 
from  a  state  law,  is  in  the  interest  of  the  honest  debtor  as  well, 
for  thereby  alone  can  he  obtain  a  release  from  all  of  his  debts, 
since  a  state  statute,  which  has  no  extraterritorial  jurisdiction, 
could  not  discharge  him  from  the  claims  of  nonresident  cred- 
itors. The  proper  purposes  of  a  bankruptcy  act,  therefore,  are 
to  protect  creditors  from  fraud,  to  secure  an  equal  and 
equitable  distribution  of  a  debtor's  estate  among  his  creditors, 
and  to  relieve  honest  debtors  from  the  burden  of  debts  which 
have  fallen  upon  them  through  misfortune,  and  which  they 
could  never  pay.  The  state  itself,  as  has  been  well  said,  has 
an  interest  in  extending  this  relief  to  such  debtors,  since  it  is 
for  the  good  of  the  state  that  all  of  its  members  should  be  in- 
dustrious, and  contribute  their  efforts  to  building  up  the  general 
prosperity.  Any  one  who  has  been  so  unfortunate  as  to  con- 
tract an  enormous  load  of  indebtedness,  which  he  recognizes  to 
be  beyond  his  ability  to  pay,  even  by  the  labor  of  a  lifetime, 
is  liable  to  have  his  industry  paralyzed,  and  to  become  a  mere 
drone  on  society.  On  the  other  hand,  if  he  is  allowed  to  turn 
over  all  his  property  as  a  trust  fund  to  his  creditors,  and  secure 
a  discharge  from  his  indebtedness,  he  can  start  life  anew,  with 
the  feeling  that  he  will  reap  some  benefit  from  his  labor,  and 
will  thereby  be  induced  again  to  become  a  useful  member  of 
the  body  politic. 

The  policy  of  bankrupt  laws  has  varied  according  as  the  law- 
makers have  had  most  in  mind  the  protection  of  the  creditor  or 
the  relief  of  the  debtor.  The  act  of  March  2,  1867,  with  which 
the  older  members  of  the  bar  are  familiar,  was  mainly  a  col- 
lection law  in  the  interest  of  the  creditor,  though  it  did  not 
entirely  lose  sight  of  the  interest  of  the  debtor.     The  present 


76  DISTRICT    COURT — BANKRUPTCY.  (Ch.  O 

law  was  in  its  inception  mainly  in  the  interest  of  the  debtor. 
The  amendment  of  February  5,  1903,f  however,  has  changed 
this  considerably,  and  made  it  more  of  a  collection  law,  though 
it  still  remains  as  to  its  distinctive  features  primarily  in  the 
interest  of  the  debtor. 

A  bankrupt  law  is  in  a  certain  sense  a  proceeding  in  rem. 
It  treats  the  debtor's  property  as  a  trust  fund,  takes  charge  of 
it  through  the  machinery  of  the  bankrupt  court,  and  divides  it  • 
among  his  creditors. 

Nothing  can  better  illustrate  the  advance  in  civilization  than 
the  contrast  between  the  present  and  former  methods  of  treat- 
ing the  debtor.  The  old  laws  of  imprisonment  for  debt  locked 
up  many  deserving,  talented,  and  industrious  citizens,  with- 
drew them  from  the  general  class  of  producers,  and  made  them 
a  charge  upon  the  community.  The  horrors  of  this  state  of 
affairs  have  played  too  prominent  a  part,  both  in  history  and 
literature,  to  require  more  than  a  passing  reminder.  On  the 
other  hand,  the  abolition  of  imprisonment  for  debt  and  the 
enactment  of  the  bankrupt  laws  have  placed  every  citizen  in  a 
position  where  he  not  only  can,  but  probably  will,  labor  for 
the  general  weal,  as  he  still  has  left  the  motive  of  acquisition, 
which  is  the  mainspring  of  prosperity. 

In  view  of  the  object  of  a  bankrupt  law,  the  courts  have  treat- 
ed such  laws,  not  as  special  statutory  proceedings,  to  be  strictly 
construed,  like  attachment  laws,  but  as  remedial,  and  there- 
fore to  be  liberally  construed.  On  this  point  Judge  Deady  has 
well  said  in  the  case  of  In  re  Muller:  1  "In  the  course  of 
the  argument  counsel  have  insisted  that  this  is  a  special  pro- 
ceeding, purely  statutory,  and  that  the  act  must  be  taken  most 
strictly  against  the  creditor  and  in  favor  of  the  bankrupt.  In 
my  judgment,  this  view  of  the  matter  is  not  supported  by  rea- 
son or  authority.  The  act  does  not  attempt  to  punish  the  bank- 
rupt, but  to  distribute  his  property  fairly  and  impartially  be- 

f  U.  S.  Comp.  St.  Supp.  1903,  p.  410. 

i  Fed.  Cas.  No.  9,912.  See,  also,  Blake,  Moffit  &  Towne  v.  Valen- 
tine (D.  C.)  89  Fed.  691. 


§  37)  CONSTITUTIONALITY    OF   LEGISLATION.  77 

tween  his  creditors,  to  whom  in  justice  it  belongs.  It  is  reme- 
dial, and  seeks  to  protect  the  honest  creditor  from  being  over- 
reached and  defrauded  by  the  unscrupulous.  It  is  intended  to 
relieve  the  honest  but  unfortunate  debtor  from  the  burden  of 
liabilities  which  he  cannot  discharge,  and  allow  him  to  com- 
mence the  business  of  life  anew.  The  power  to  pass  bank- 
rupt laws  is  one  of  the  express  grants  of  power  to  the  national 
government,  and  history  teaches  that  the  want  of  a  uniform 
law  on  this  subject  throughout  the  states  was  one  of  the  prom- 
inent causes  which  led  to  the  assembling  of  the  constitutional 
convention,  and  consequent  formation  and  adoption  of  the  fed- 
eral Constitution.  Such  a  statute  is  not  to  be  construed  strict- 
ly, as  if  it  were  an  obscure  or  special  penal  enactment,  and  this 
was  the  sixteenth  instead  of  the  nineteenth  century.  The  act 
establishes  a  system,  and  regulates,  in  all  their  details,  the  rela- 
tive rights  and  duties  of  debtor  and  creditor.  Such  an  act  must 
be  construed — as,  indeed,  should  all  acts — according  to  the 
fair  import  of  its  terms,  with  a  view  to  effect  its  objects  and  to 
promote  justice." 

CONSTITUTIONALITY  OF  BANKRUPT  LEGISLATION. 

37.  A  national  bankrupt  law  may  constitutionally  provide  for 
discharges  from  debts  existing  at  the  time  of  its  pas- 
sage; also  for  an  adjudication  without  notice  to  cred- 
itors. It  may  limit  the  classes  to  which  it  applies,  and 
adopt  state  exemptions,  though  they  vary  in  the  dif- 
ferent states,  -without  contravening  the  constitutional 
requirement  of  uniformity. 

Although  the  federal  Constitution  forbids  a  state  from  pass- 
ing any  laws  that  would  impair  the  obligation  of  contracts, 
there  is  no  similar  prohibition  against  congressional  action. 
For  this  reason  a  national  bankrupt  law  can  accomplish  the 
objects  of  bankruptcy  legislation  when  a  state  law  could  not, 
for  Congress  can  pass  a  bankrupt  law  that  would  authorize  the 
discharge  of  the  debtor  not  only  from  debts  incurred  subse- 
quent to  the  passage  of  the  law,  but  also  from  debts  existing  at 


78  DISTRICT    COURT — BANKRUPTCY.  (Ch.  5 

the  time  of  its  passage.2  Under  its  power  to  pass  a  bank- 
rupt law,  Congress  can  also  prescribe  penal  offenses  for  viola- 
tions of  its  provisions,  but  it  could  not  make  a  penal  law 
ex  post  facto,  so  that  an  act  innocent  at  the  time  it  was 
committed  cannot  be  made,  even  by  Congress,  an  offense 
upon  the  happening  of  some  subsequent  act  either  of  the  bank- 
rupt or  another.3  As  a  bankrupt  procedure  is  in  the  nature 
of  a  proceeding  in  rem,  a  bankrupt  law  is  not  invalid,  as  de- 
priving creditors  of  their  property  without  due  process  of  law, 
because  it  fails  to  provide  for  notice  to  them  of  the  adjudication 
of  bankruptcy.  Under  the  voluntary  proceeding,  as  will  be 
seen  later  on,  the  debtor,  on  filing  his  petition,  is  adjudged  a 
bankrupt  by  the  court  without  giving  notice  to  his  creditors; 
but  the  law  requires  notice  of  subsequent  proceedings  to  be 
given,  so  that,  before  any  distribution  of  the  property  so  sur- 
rendered by  the  debtor,  the  creditors  have  ample  opportunity 
to  prove  their  claims  and  litigate  any  questions  in  which  they 
are  interested.  They  also  have  opportunity  to  contest  the  right 
of  the  bankrupt  to  a  discharge ;  hence  they  have  their  day  in 
court,  and  the  law  for  that  reason  is  constitutional.4 

It  will  be  observed  that  the  Constitution,  giving  Congress  the 
power  to  enact  bankruptcy  laws,  requires  that  they  shall  be 
uniform.  The  present  act  and  the  act  of  March  2,  1867,  pro- 
vided that  the  exemptions  allowed  by  the  different  state  laws 
should  be  preserved  for  the  benefit  of  the  bankrupt.  As  these 
varied  in  different  states,  it  was  contended  under  both  of  these 
statutes  that  the  law  was  unconstitutional  for  lack  of  uniform- 
ity, but  the  courts  have  decided  that  this  provision  did  not  de- 
stroy its  uniformity,  as  it  was  uniform  in  its  general  provisions 
and  procedure,  and  the  states  could  best  judge  of  the  need  of 
an  exemption  and  the  extent  of  it.0 

2  In  re  Owens,  Fed.  Cas.  No.  10,632;  Darling  v.  Berry  (C.  C.)  13 
Fed.  659. 

s  U.  S.  v.  Fox,  95  U.  S.  670,  24  L.  Ed.  538. 

4  HANOVER  NAT.  BANK  v.  MOYSES,  186  U.  S.  181,  22  Sup.  Ct. 
857,  46  L.  Ed.  1113. 

b  In  re  Beckerford,  Fed.  Cas.  No.  1,209 ;    Darling  v.  Berry  (C.  C.) 


§  38)        EFFECT    OF    FEDERAL   ON    STATE    LEGISLATION.  79 

Nor  does  the  present  act  lose  its  character  of  uniformity 
from  the  fact  that  it  allows  individuals  to  file  a  voluntary  peti- 
tion, but  denies  that  privilege  to  a  corporation,  and  the  further 
fact  that  it  limits  the  right  of  proceeding  in  involuntary  cases 
to  a  certain  class  of  corporations,  for  the  law  is  still  uniform  as 
to  the  classes  affected  by  it,  and  it  is  within  the  discretion  of 
Congress  to  regulate  the  parties  to  whom  such  a  law  shall 
apply.  The  original  bankruptcy  legislation  of  England  ap- 
plied only  to  traders,  and  the  earlier  bankruptcy  legislation  of 
this  country  was  limited  in  the  same  way.  There  are  not  the 
same  reasons  for  giving  a  corporation  a  discharge  from  its 
debts  that  exist  in  the  case  of  an  individual.  The  ordinary 
procedure  for  winding  up  corporations  is  usually  adequate,  and, 
as  to  them,  the  reason  of  state  policy  which  requires  the  debtor 
to  be  encouraged  by  a  discharge,  in  order  to  induce  him  to  con- 
tinue his  labors,  does  not  apply.  Hence  the  only  reason  for 
applying  a  bankrupt  law  to  a  corporation  is  to  secure  an 
equitable  distribution  of  its  assets  among  its  creditors,  and  that 
can  ordinarily  be  accomplished  in  other  ways.  Therefore  Con- 
gress can,  in  its  discretion,  discriminate  between  corporations 
and  individuals,  and  also  as  among  corporations  themselves,  in 
deciding  whether  to  make  a  bankrupt  law  apply.9 


SAME— EFFECT  OF  FEDERAL  ON  STATE  LEGISLATION. 

38.  The  national  bankruptcy  laws  do  not  invalidate  any  state 
laws,  but  only  cause  them  to  become  inoperative  while 
the  federal  law  remains  in  force. 

Validity  of  State  Insolvent  Laws,  and  Effect  on  Such  Laws  of 
National  Bankrupt  Legislation. 
In  the  absence  of  any  national  bankrupt  legislation,  there  is 
no  reason  why  a  state  cannot  pass  laws  in  the  nature  of  local 

13  Fed.  659;    HANOVER  NAT.  BANK  v.  MOYSES,  186  U.  S.  181, 
22  Sup.  Ct.  S57,  46  L.  Ed.  1113. 

e  Leidigh  Carriage  Co.  v.  Stengel,  95  Fed.  637,  37  C.  C.  A.  210; 


80  DISTRICT    COURT — BANKRUPTCY.  (Cll.  5 

insolvent  laws,  intended  to  secure  an  equitable  distribution  of 
a  debtor's  estate  among  his  creditors,  and  to  relieve  a  debtor 
of  an  unbearable  load  of  debt;  but,  from  their  nature,  these 
local  laws  can  but  partially  accomplish  their  object.  In  the  first 
place,  the  state  cannot  make  them  applicable  to  debts  existing 
at  the  time  of  their  passage,  for  the  constitutional  provision 
against  impairing  the  obligation  of  contracts  stands  in  the 
path.  Nor  can  a  state  make  such  a  law  binding  on  parties 
living  beyond  its  jurisdiction,  as  the  power  of  a  state  does  not 
extend  beyond  its  own  territory,  and  hence  it  cannot  provide 
for  giving  the  notice  necessary  to  bind  nonresidents.  Such 
laws,  however,  are  binding  upon  such  nonresidents  as  volun- 
tarily appear  in  the  state  court,  prove  their  claim,  and  partici- 
pate in  the  proceeding,  for  it  is  a  mere  question  of  notice,  and 
by  so  appearing  they  submit  themselves  to  the  jurisdiction  of 
the  state  court.7 

When  such  state  laws  are  in  existence,  and  a  national  bank- 
rupt law  is  passed,  it  does  not  have  the  effect  of  completely 
nullifying  the  state  law.  It  merely  leaves  it  in  a  state  of  sus- 
pended animation,  so  that  the  instant  the  bankrupt  law  is  re- 
pealed the  state  law  comes  again  into  effect,  without  any  addi- 
tional legislation  by  the  state.  On  the  same  theory,  if  a  state 
enacts  a  local  law  while  a  bankrupt  law  is  in  existence,  that  law 
is  not  absolutely  null  and  void ;  it  merely  remains  in  suspense 
until  the  national  bankrupt  law  is  repealed,  and  then  it  takes 
immediate  effect.8 


HANOVER  NAT.  BANK  v.  MOYSES,  186  U.  S.  181,  22  Sup.  Ct. 
857,  46  L.  Ed.  1113. 

7  Baldwin  v.  Hale,  1  Wall.  223,  17  L.  Ed.  531;  GILMAN  v.  LOCK- 
WOOD,  4  Wall.  409,  18  L.  Ed.  432;  Brown  v.  Smart,  145  U.  S.  454, 
12  Sup.  Ct.  958,  36  L.  Ed.  773. 

sTua  v.  Carriere,  117  U.  S.  201,  6  Sup.  Ct.  565,  29  L.  Ed.  855; 
Butler  v.  Goreley,  146  U.  S.  303,  13  Sup.  Ct.  84,  36  L.  Ed.  981;  In  re 
John  A  Etheridge  Furniture  Co.  (D.  C.)  92  Fed.  329. 


39)  THE   BANKRUPTCY    COURTS.  81 


THE  BANKRUPTCY  COURTS. 

39.  The  courts  of  bankruptcy  as  designated  by  the  statute,  in 
the  preliminary  definitions,  are  the  district  courts  of 
the  United  States  and  of  the  territories,  the  supreme 
court  of  the  District  of  Columbia,  and  the  United 
States  courts  of  the  Indian  Territory  and  of  Alaska, 
and  these  tribunals  are  invested  with  such  powers  as 
irill  enable  them  to  exercise  control  in  matters  of 
bankruptcy. 
The  Question  of  the  proper  forum,  as  to  locality,  is  fixed  by 
the  terser  of  the  statute,  together  with  certain  rules  of 
the  Supreme  Court  promulgated  under  the  authority 
of  the  statute. 

The  second  section  of  the  bankrupt  act  provides  that  "the 
courts  of  bankruptcy,  as  hereinbefore  defined,  namely,  the  dis- 
trict courts  of  the  United  States  in  the  several  states,  the  su- 
preme court  of  the  District  of  Columbia,  the  district  courts  of 
the  several  territories,  and  the  United  States  courts  in  the 
Indian  Territory  and  the  district  of  Alaska,  are  hereby  made 
courts  of  bankruptcy,  and  are  hereby  invested,  within  their  re- 
spective territorial  limits  as  now  established,  or  as  they  may 
be  hereafter  changed,  with  such  jurisdiction  at  law  and  in 
equity  as  will  enable  them  to  exercise  original  jurisdiction  in 
bankruptcy  proceedings  in  vacation,  in  chambers  and  during 
their  respective  terms,  as  they  are  now  or  may  be  hereafter  held, 
to  do  the  various  things  incidental  to  the  administration  of  the 
bankruptcy  law." 

The  Proper  Forum  as  to  Locality. 

The  court  having  jurisdiction  to  adjudge  a  person  bankrupt 
is  the  court  of  the  district  wherein  the  bankrupt  has  had  his 
principal  place  of  business,  resided,  or  had  his  domicile  for  the 
preceding  six  months,  or  the  greater  portion  thereof,  or  who, 
though  not  having  his  principal  business,  residence,  or  domicile 
within  the  United  States,  has  property  within  its  jurisdiction, 
or  who,  though  without  the  United  States,  has  been  adjudged 
Hughes  Fed.  Jur.   —6 


82  DISTRICT    COURT — BANKRUPTCY.  (Cll.  5 

bankrupt  by  a  court  of  competent  jurisdiction,  and  has  prop- 
erty within  the  jurisdiction  of  such  district  court.  Under  sec- 
tion 30  of  the  bankrupt  law  the  Supreme  Court  is  given  the 
power  to  prescribe  necessary  rules,  forms,  and  orders  as  to 
procedure  in  bankruptcy;  and,  pursuant  to  that  right,  certain 
rules  were  made  by  the  Supreme  Court  at  the  October  term, 
1898,  the  first  term  after  the  bankrupt  law  was  enacted.  Un- 
der this  power  the  court  has  prescribed  that,  where  a  proceeding 
has  been  instituted  in  more  than  one  district,  the  first  hearing 
shall  be  had  in  the  district  in  which  the  debtor  has  his  domicile, 
but  in  case  of  partnerships  the  first  hearing  shall  be  had  on  the 
petition  first  filed,  or,  in  case  of  voluntary  petitions  by  different 
members  of  the  same  partnership,  the  court  in  which  the  peti- 
tion is  first  filed  shall  take  and  retain  jurisdiction,  subject  to 
the  right  prescribed  by  the  bankrupt  act  itself  to  transfer  cases 
to  the  district  where  it  can  be  proceeded  with  for  the  greatest 
convenience  of  parties  in  interest.9 

Under  these  provisions,  where  a  bankrupt  had  a  workshop  in 
one  district,  but  carried  on  business  on  his  own  account  in  an- 
other, it  was  held  that  the  latter  was  a  proper  district  in  which 
to  file  a  petition,  though  the  court  did  not  go  so  far  as  to  say 
that  it  could  not  have  been  filed  in  the  other.10  So  in  an  in- 
voluntary proceeding  against  a  corporation  which  had  its  main 
works  in  Rhode  Island,  but  had  shut  down  there,  and  con- 
tinued business  in  New  York,  where  its  executive  and  banking 
business  was  done,  it  was  held  that  the  petition  could  properly 
be  filed  in  New  York.11  In  the  case  of  a  party  who  spent  most 
of  his  time  abroad,  it  was  held  that  he  could  still  file  his  peti- 
tion in  the  district  of  his  domicile,  if  his  original  domicile  had 
not  been  given  up,  and  he  had  returned  before  filing  his  peti- 
tion, with  the  intention  of  making  his  home  at  that  point.12 
Under  the  power  to  transfer  from  one  district  to  another  given 

»  Bankr.  Rule  6,  172  U.  S.  654,  18  Sup.  Ct  v,  43  L.  Ed.  1189. 
io  in  re  Brice  (D.  C.)  93  Fed.  942. 

ii  In  re  Marine  Machine  &  Conveyor  Co.  (D.  C.)  91  Fed.  630. 
12  In  re  Williams  (D.  C.)  99  Fed.  544. 


§  40)  PARTIES.  83 

by  section  32  of  the  act,  an  involuntary  petition  had  been  filed 
in  Georgia,  and  the  debtor  had  filed  his  voluntary  petition  in 
New  York.  He  had  lived  in  Georgia.  The  great  bulk  of  his 
debts  had  been  contracted  there,  and  he  was  an  employe  of 
a  corporation  which  was  located  in  Georgia,  and  had  succeeded 
to  the  business  of  his  former  firm.  It  was  held  in  this  case  that 
Georgia  was  the  proper  and  most  convenient  district,  and  that 
the  right  to  transfer  applied  not  simply  to  involuntary  cases, 
but  to  an  involuntary  proceeding  in  one  district,  and  a  volun- 
tary in  another.13  But  if  a  petition  is  filed  where  the  debtor 
had  not  resided  or  been  domiciled,  a  creditor  who  wishes  to 
object  must  do  so  promptly.  He  cannot  come  into  the  pro- 
ceeding, prove  his  claim,  and  then  urge  this  lack  of  jurisdic- 
tion in  opposition  to  the  bankrupt's  discharge,  for  the  reason 
that  by  coming  into  the  proceeding  he  has  waived  any  objec- 
tions to  jurisdiction;  the  question  being  merely  one  of  personal 
jurisdiction,  and  not  of  jurisdiction  over  the  subject-matter.14 

PARTIES— VOLUNTARY  PROCEEDINGS. 

40.  Any  person  who  owes  debts,  except  a  corporation,  may 
avail  himself  of  the  benefits  of  the  act  as  a  voluntary 
bankrupt.  This,  however,  does  not  apply  to  any  one 
non  compos  mentis,  nor  to  one  under  any  legal  disa- 
bility. 

This  applies  to  a  resident  alien.16  Notwithstanding  its  broad 
language,  however,  there  are  some  parties  who  cannot  avail 
of  the  act.  An  infant  cannot  file  a  voluntary  petition  in  bank- 
ruptcy, nor  can  an  involuntary  petition  be  filed  against  him, 
for  the  reason  that  an  infant  needs  no  discharge  against  the 
great  mass  of  his  debts.  Hence,  where  an  involuntary  proceed- 
ing had  been  instituted  against  a  partnership  which  had  an  in- 
fant member,  the  proceeding  was  dismissed  as  to  him,  though 

is  in  re  Waxelbaum  (D.  C.)  98  Fed.  589. 
14  In  re  Mason  (D.  C.)  99  Fed.  256. 
16  In  re  Boynton  (D.  C.)  10  Fed.  277. 


84  DISTRICT    COURT — BANKRUPTCY.  (Ch.  5 

it  was  retained  as  to  the  other  partners.18  On  similar  princi- 
ples, a  lunatic  cannot  file  a  voluntary  petition,  nor  can  an  in- 
voluntary petition  be  filed  against  him  for  debts  incurred  while 
non  compos  mentis,  as  a  lunatic  could  not  commit  an  act  of 
bankruptcy.  If,  however,  the  act  of  bankruptcy  was  commit- 
ted while  sane,  his  supervening  lunacy  would  not  prevent  a 
procedure  against  him.17  Nor  can  a  married  woman  file  a 
voluntary  petition,  or  be  proceeded  against,  except  in  states 
where  her  common-law  disabilities  have  been  removed,  and  she 
has  power  to  contract.18 

The  eighth  section  of  the  present  bankrupt  law  provides, 
also,  that  the  death  or  insanity  of  the  bankrupt  shall  not  abate 
the  proceedings.  Of  course,  this  alludes  to  death  or  insanity 
supervening  after  the  filing  of  the  petition. 

SAME— INVOLUNTARY  PROCEEDINGS. 

41.  Under  the  fourth  section  of  the  "bankrupt  act,  as  amended 
February  5,  1903,  any  natural  person,  except  a  wage 
earner,  or  a  person  engaged  chiefly  in  farming  or  til- 
lage of  the  soil,  any  unincorporated  company,  and  any 
corporation  engaged  principally  in  mining,  manufac- 
turing, trading,  printing,  publishing,  or  mercantile 
pursuits,  owing  debts  to  the  amount  of  a  thousand  dol- 
lars or  over,  may  be  adjudged  an  involuntary  bankrupt. 
This  is  inapplicable  to  persons  under  legal  disabili- 
ties, on  the  same  principle  as  the  exception  above  stat- 
ed in  the  case  of  voluntary  bankruptcy. 

For  reasons  already  given,  infants,  lunatics,  and  married 
women  cannot  be  proceeded  against  under  the  qualifications 

i6  In  re  Dunnigan  (D.  C.)  95  Fed.  428.  See,  also,  In  re  Duguid 
(D.  C.)  100  Fed.  274. 

it  In  re  Marvin,  Fed.  Cas.  No.  9,178;  In  re  Pratt,  Fed.  Cas.  No. 
11,371;  In  re  Weitzel,  Fed.  Cas.  No.  17,365;  In  re  Funk  (D.  C.)  101 
Fed.  244. 

is  In  re  Kinkead,  Fed.  Cas.  No.  7.S24;  In  re  Goodman,  Fed.  Cas. 
No.  5,540. 


§  41)  PARTIES.  85 

stated,  so  that  they  are  excepted  as  much  as  if  they  had  been 
expressly  named.  All  other  natural  persons,  except  those 
named  in  the  act,  may  be  proceeded  against. 

Wage  earners. 

The  exception  of  wage  earners  from  the  list  of  involuntary 
bankrupts  introduces  a  large  field  for  construction  by  the 
courts,  as  the  term  is  a  very  difficult  one  to  define.  The  twenty- 
seventh  of  the  preliminary  definitions  in  the  act  defines  it  as 
meaning  an  individual  who  works  for  wages,  salary,  or  hire, 
at  a  rate  of  compensation  not  exceeding  $1,500  per  year.  But 
for  this  definition,  it  would  probably  have  been  held  to  include 
those  who  work  for  wages,  as  distinguished  from  those  who 
work  for  salaries,  or  compensation  measured  by  the  work 
rather  than  the  period.  The  word  "wages"  usually  implies 
the  compensation  of  persons  of  small  means.19  Counsel  fees 
are  considered  as  above  the  grade  of  wages,  and  hence  could 
hardly  be  included.20  Under  similar  statutes,  like  lien  acts, 
a  contractor  is  not  usually  counted  as  an  employe,  nor  his 
compensation  as  wages.21  Another  section  of  the  act  (section 
64)  names  among  the  preferred  debts  wages  due  to  workmen, 
clerks,  or  servants.  It  is  not  entirely  safe  to  consider  the  de- 
cisions construing  this  section  as  in  point  in  reference  to  the 
meaning  of  "wage  earner,"  for  the  use  of  different  language 
by  Congress  is  indicative  of  different  intent.;  and,  besides,  a 
clause  changing  the  ordinary  rule  of  equality  would  be  more 
strictly  construed  than  the  first.  Under  this  latter  section,  how- 
ever, it  has  been  held  that  a  traveling  salesman  who  is  paid  a 
salary  of  five  thousand  dollars  does  not  secure  any  priority 
on  account  of  "wages  due  to  workmen,  clerks,  or  servants."  " 


18  Gordon  v.  Jennings,  9  Q.  B.  Div.  45. 

20  Louisville,  E.  &  St.  L.  R.  Co.  v.  Wilson,  138  U.  S.  501,  11  Sup. 
Ct.  405,  34  L.  Ed.  1023. 

2i  Riley  v.  Warden,  2  Exch.  59;  Vane  v.  Newcombe,  132  U.  S. 
220,  10  Sup.  Ct.  60,  33  L.  Ed.  310. 

22  In  re  Scanlan  (D.  C.)  97  Fed.  26;  In  re  Greenewald  (D.  C.)  99 
Fed.  705. 


86  DISTRICT    COURT — BANKRUPTCY.  (Ch.  5 

Nor  does  the  clause  apply  to  the  general  manager  of  a  mercan- 
tile corporation,  who  is  paid  a  salary  of  twelve  hundred  dollars 
per  annum,  or  to  the  president  of  a  business  corporation  who 
is  paid  a  salary  of  seven  hundred  dollars  per  annum.23 

There  is  no  such  thing  as  a  proceeding  in  involuntary  bank- 
ruptcy against  a  decedent's  estate.24  The  reason  of  this  is 
that  the  ordinary  laws  for  the  administration  of  estates  give 
ample  remedies  for  securing  its  just  distribution  among  credit- 
ors, and,  as  far  as  the  debtor  is  concerned,  he  can  hardly  be 
considered  as  interested  in  securing  a  discharge.  As  to  tillers 
of  the  soil,  reference  may  be  made  to  the  cases  cited  below.25 

Corporations. 

As  to  the  corporations  against  whom  involuntary  proceed- 
ings may  be  taken,  the  policy  of  the  present  law  is  very  dif- 
ferent from  that  of  the  act  of  March  2,  1867.  That  act  al- 
lowed the  proceeding  against  all  moneyed,  business,  and  com- 
mercial corporations  and  joint-stock  companies.  The  lan- 
guage of  the  present  act,  as  seen  above,  is  entirely  different,  and 
therefore  the  decisions  construing  the  old  act  must  be  but  cau- 
tiously used  in  construing  the  present  one.  The  intent  of  Con- 
gress evidently  was  to  limit  very  largely  the  corporations 
against  whom  such  proceedings  can  be  taken,  probably  for  the 
reason  that  other  remedies  for  the  liquidation  of  insolvent  cor- 
porations are  abundant,  and  the  further  reason  that  a  bankrupt 
law  is  not  as  necessary  to  a  corporation  as  to  an  individual. 
Since  the  former  act,  the  growth  of  the  law  of  corporations 
under  the  decisions  of  the  courts  as  to  procedure  against  them 
by  means  of  receiverships  and  otherwise  has  been  unprece- 
dented ;  and  the  importance  of  operating  some  corporations, 
instead  of  winding  them  up  summarily,  has  rendered  it  im- 
portant to  leave  the  other  remedies  free,  as  the  present  act 

23  In  re  Grubbs-Wiley  Grocery  Co.  (D.  C.)  96  Fed.  183;  In  re 
Carolina  Cooperage  Co.  (D.  C.)  96  Fed.  950. 

24  Adams  v.  Terrell  (C.  C.)  4  Fed.  796. 

25  in  re  Thompson  (D.  C.)  102  Fed.  2S7;  In  re  Luckhardt  (D.  C.) 
101  Fed.  807. 


§  41)  PARTIES.  87 

only  allows  the  continuance  of  the  business  of  a  corporation 
for  limited  periods.  For  instance,  railroad  corporations  could 
be  proceeded  against  under  the  former  act,  but  it  is  perfectly 
obvious  that  they  would  not  be  included  under  the  present  act. 
It  can  well  be  seen  how  embarrassing  a  bankruptcy  proceeding 
might  be  upon  almost  any  corporation  charged  with  a  public 
service,  and  it  was  probably  for  this  reason  that  they  were 
omitted.  In  view  of  this  patent  intent  of  Congress  to  limit  the 
range  of  the  bankrupt  act  as  to  corporations,  it  would  seem  the 
duty  of  the  courts  to  construe  the  language  of  the  act  strictly 
in  this  respect,  though  this  has  not  always  been  done.  For 
instance,  in  the  case  of  In  re  San  Gabriel  Sanatorium  Co.28  it 
was  held  that  a  private  corporation  which  operated  a  hospital 
for  consumptives,  not  as  a  charity,  but  as  a  business  venture, 
could  be  proceeded  against  in  bankruptcy;  the  court  holding 
that  such  a  corporation  was  a  trading  or  mercantile  corpora- 
tion. It  would  certainly  seem  that  this  was  giving  these  two 
words  an  elasticity  unknown  to  previous  decisions.  On  the 
other  hand,  it  has  been  held  that  a  mutual  fire  insurance  com- 
pany could  not  be  proceeded  against.27  The  court,  in  its  opin- 
ion, limited  its  holding  to  a  mutual  company,  but  the  language 
of  the  act  and  the  reasoning  of  the  court  would  clearly  apply 
to  any  insurance  company.  So,  too,  in  a  very  interesting  opin- 
ion, Judge  Brown,  of  New  York,  held  that  a  water  company 
which  furnished  water  to  consumers  in  a  city,  and  charged 
water  rents,  could  not  be  proceeded  against,  even  though  it 
obtained  part  of  the  water  so  furnished  by  purchase.28     The 

28  (D.  C.)  95  Fed.  271.  This  case  has  been  much  questioned,  and 
the  preponderance  of  authority  is  in  favor  of  a  much  narrower  mean- 
ing of  the  words  "engaged  in  trading  or  *  *  *  mercantile  pur- 
suits." In  re  White  Star  Laundry  Co.  (D.  C.)  117  Fed.  570;  In  re 
Surety  Guaranty  &  Trust  Co.,  121  Fed.  73,  56  C.  C.  A.  654;  In  re 
H.  J.  Quimby  Freight  Forwarding  Co.  (D.  C.)  121  Fed.  139. 

2  7  In  re  Cameron  Town  Mut.  Fire,  Lightning  &  Windstorm  Ins. 
Co.  (D.  C.)  96  Fed.  756. 

2  8  in  re  New  York  &  W.  Water  Co.  (D.  C.)  98  Fed.  711.  See,  also, 
Dudley  v.  Corporation,  100  Mass.  1S3. 


88  DISTRICT    COURT — BANKRUPTCY.  (Ch.  5 

word  "trading"  is  a  classic  in  bankruptcy  law,  though  the 
courts  have  been  cautious  in  avoiding  any  general  definition. 
Its  general  meaning  seems  to  be  one  who  buys  and  sells  goods 
or  merchandise  of  some  sort.  This  construction  has  been  put 
upon  the  word  "tradesman"  in  the  section  of  the  old  bankrupt 
law  which  required  the  keeping  of  certain  books  of  accounts. 
Under  that  section,  a  baker  who  buys  flour,  and  makes  it  into 
bread  and  sells  it  to  customers,  is  considered  a  tradesman.29 
So,  too,  a  butcher,30  and  also  a  stairmaker,  who  buys  materi- 
als, makes  them  into  stairs,  and  puts  them  up  and  sells  them.31 
A  railroad  contractor,  however,  does  not  come  within  the 
term.32  A  large  class  of  corporations  is  included  under  the 
word  manufacturing.  This  would  seem  to  cover  any  corpora- 
tion which  took  any  sort  of  raw  or  unfinished  material,  and 
either  completed  it  into  the  finished  product,  or  carried  it  a  step 
nearer  completion,  like  the  owner  of  a  steam  sawmill,  who  takes 
lumber,  prepares  it  for  market,  and  sells  it.38 


PLEADINGS. 

42.  Bankruptcy  proceedings  are  instituted  by  filing  petitions 
sworn  to  by  the  petitioner,  made  out  upon  certain 
forms  prescribed  by  the  Supreme  Court,  which  peti- 
tions set  forth  the  facts  necessary  to  show  the  juris- 
diction and  the  grounds  of  bankruptcy. 
With  the  voluntary  petition  are  filed  various  schedules  show- 
ing creditors,  liabilities,  assets,  securities,  and  exemp- 
tions. In  the  involuntary  proceeding  the  schedules  need 
only  be  furnished  by  the  petitioner  in  the  event  the 
bankrupt  is  absent  or  cannot  be  found.  All  creditors 
with  provable  claims  can  file  petitions  in  involuntary 
bankruptcy  when  an  act  of  bankruptcy  has  been  com- 


29  In  re  Cocks,  Fed.  Cas.  No.  2,933. 
so  In  re  Bassett  (D.  C.)  8  Fed.  266. 
si  In  re  Garrison,  Fed.  Cas.  No.  5,254. 
«2  in  re  Smith,  Fed.  Cas.  No.  12,981. 
8s  in  re  Chandler,  Fed.  Cas.  No.  2,591. 


§  42)  PLEADINGS.  89 

mitted.  In  bankruptcy  proceedings,  amendments  are 
freely  allowed.  A  petition  once  filed  cannot  be  dis- 
missed -without  notice  to  the  creditors. 

Voluntary  Proceedings. 

Voluntary  proceedings  are  instituted  by  the  filing  of  a  peti- 
tion by  the  person  entitled  to  the  benefits  of  the  act  as  a  volun- 
tary bankrupt.  Form  Is*  prescribed  by  the  Supreme  Court  is 
used  for  this  purpose.  It  contains  allegations  necessary  to 
show  the  court  the  district  in  which  it  should  be  filed;  also 
a  statement  that  the  petitioner  owes  debts  which  he  is  unable 
to  pay  in  full,  and  that  he  is  willing  to  surrender  his  property 
for  the  benefit  of  his  creditors,  except  such  as  is  exempt  by  law, 
and  that  he  desires  to  obtain  the  benefit  of  the  bankrupt  act. 
It  end?  by  a  prayer  that  he  be  adjudged  a  bankrupt,  and  is 
sworn  to.  Annexed  to  the  petition  is  a  series  of  schedules. 
Schedule  A  contains  a  statement  of  the  bankrupt's  debts,  and 
is  subdivided  so  as  to  show  (1)  a  statement  of  all  creditors  who 
are  to  be  paid  in  full,  or  to  whom  priority  is  secured  by  law ; 
(2)  a  statement  of  creditors  holding  securities;  (3)  a  state- 
ment of  creditors  whose  claims  are  unsecured ;  (4)  a  statement 
of  the  bankrupt's  liabilities  on  paper  for  which  others  are 
primarily  liable ;   and  (5)  a  statement  of  accommodation  paper. 

Schedule  B  is  a  statement  of  the  bankrupt's  property,  and 
is  subdivided  so  as  to  show  (1)  his  real  estate ;  (2)  his  personal 
property,  classified  under  numerous  subheadings ;  (3)  his 
choses  in  action,  which  are  shown  separate  from  his  other  per- 
sonal property;  (4)  his  property  in  reversion,  remainder,  or 
expectancy;  (5)  his  property  claimed  as  exempt;  and  (6)  the 
books,  papers,  and  other  documents  relating  to  his  business 
and  estate.  At  the  end  of  these  two  detailed  schedules  is  a 
summary  both  of  his  debts  and  assets.  This  form  requires  the 
report  of  everything  claimed  to  be  exempt,  though,  as  a  matter 
of  fact,  the  exemption  comes  under  the  control  of  the  bank- 
rupt court  only  in  a  very  qualified  way.     The  eleventh  subdi- 

s*  172  U.  S.  667,  18  Sup.  Ct.  xi,  43  L.  Ed.  1195. 


90  DISTRICT    COURT — BANKRUPTCY.  (Ch.  5 

vision  of  section  47  of  the  act  requires  the  trustee  to  set  apart 
the  bankrupt's  exemption,  and  report  the  items  and  estimated 
value  thereof  to  the  court  as  soon  as  practicable  after  his  ap- 
pointment. While,  therefore,  the  bankrupt  court  has  the  pow- 
er of  examining  into  the  exemption  to  this  extent,  yet,  when  the 
exemption  has  once  been  set  apart,  it  belongs  to  the  bankrupt 
exclusively,  and  the  court  has  no  jurisdiction  of  controversies 
concerning  it,  as  it  is  not  part  of  the  trust  fund  under  the  court's 
control.85  The  bankrupt  court  will  follow  the  state  decisions 
construing  exemption  laws.88 

Pension  money  claimed  as  exempt  under  the  provisions  of 
the  federal  statutes  must  be  reported.87 

Partnership  Petitions. 

Form  2  38  of  the  forms  prescribed  is  intended  to  be  used  for 
a  partnership  petition.  The  fifth  section  of  the  bankrupt  act 
contains  careful  provisions  intended  to  secure  the  distribution 
of  the  partnership  assets  to  the  partnership  debts,  and  the  indi- 
vidual assets  to  the  individual  debts;  hence  the  partnership 
petition  must  not  only  show  the  jurisdictional  facts  necessary, 
as  in  the  case  of  the  individual  petition,  but  it  must  further 
show  separately  the  partnership  assets  and  the  assets  of  the 
individual  partners.  When  all  the  partners  join  in  a  part- 
nership petition,  the  proceeding  is  a  voluntary  one;  and, 
if  they  should  join  in  the  petition,  it  is  unnecessary  for 
the  individual  partners  to  file  separate  petitions.39  When  a 
petition  is  filed  by  a  portion  only  of  the  partners,  which  pur- 
ports not  only  to  be  an  individual  petition,  but  a  partnership 
petition,  the  proceeding  as  to  the  partners  who  do  not  join 
therein  is  an  involuntary  one,  and  they  are  entitled  to  notice, 
and  an  opportunity  of  contesting  the  proceeding.     This  is  ex- 

3 Bin  re  Camp  (D.  C.)  91  Fed.  745;    Id.,  97  Fed.  981,  38  C.  C.  A. 
689;   In  re  Grimes  (D.  C.)  96  Fed.  529. 
36  in  re  Wyllie,  Fed.  Cas.  No.  18,112. 
8  7  in  re  Bean  (D.  C.)  100  Fed.  262. 
s*  172  U.  S.  679,  18  Sup.  Ct.  xviii,  43  L.  Ed.  1207. 
as  In  re  Gay  (D.  C.)  98  Fed.  870. 


§  42)  PLEADINGS.  91 

pressly  required  by  the  eighth  order  in  bankruptcy.40  Of 
course,  an  individual  petition,  purporting  to  be  on  behalf  of  the 
individual  only,  would  not  involve  any  procedure  against  the 
partnership,  for  the  individual  member  of  a  partnership  may 
be  insolvent,  and  not  the  other  partners,  and  the  partnership 
itself  may  be  perfectly  solvent. 

As  long  as  a  partnership  owes  debts,  bankruptcy  proceedings 
may  be  taken,  for  there  is  no  "final  settlement,"  in  the  language 
of  the  fifth  section  of  the  act,  when  debts  are  due,  even  though 
there  may  be  no  assets.41  When  a  voluntary  petition  is  filed 
in  the  proper  court,  a  bankruptcy  adjudication  is  a  matter  of 
course,  and  it  cannot  be  contested  on  the  facts.  Even  though  the 
debtor  may  be  solvent,  if  he  voluntarily  chooses  to  come  into 
the  bankrupt  court  and  surrender  his  property  for  the  benefit 
of  his  creditors,  the  court,  in  the  language  of  Judge  Lowell, 
"takes  him  at  his  word,  and  makes  provision  for  carrying  out 
his  intention  of  distributing  his  property."  The  creditors  cer- 
tainly would  have  no  right  to  complain,  or  to  deny  his  right, 
even  though  he  were  solvent;  and  hence,  in  the  case  of  a 
voluntary  petition,  it  is  not  necessary,  in  any  event,  to  allege 
insolvency,  and  the  creditors  have  no  right  to  contest  the  filing 
of  the  petition.42  If,  however,  a  petition  is  filed  in  a  court 
which  has  no  jurisdiction  of  it,  creditors  may,  by  prompt  ac- 
tion, move  to  dismiss  the  petition  for  want  of  jurisdiction;  but 
they  cannot  appear  and  participate  in  the  proceeding,  and  after- 
wards question  the  jurisdiction  of  the  court  by  opposing  the 
bankrupt's  discharge  on  that  ground.43 

A  bankrupt  may  amend  his  petition  by  adding  the  name  of 
creditors  omitted,  and  it  is  not  necessary  to  give  notice  of  such 

40  Metsker  v.  Bonebrake,  108  U.  S.  66,  2  Sup.  Ct.  351,  27  L.  Ed. 
654;  In  re  Murray  (D.  C.)  96  Fed.  600;  In  re  Altman  (D.  C.)  95  Fed. 
263,  172  U.  S.  656,  18  Sup.  Ct.  v,  43  L.  Ed.  1190. 

4i  In  re  Hirsch  (D.  C.)  97  Fed.  571. 

42  In  re  Jehu  (D.  C.)  94  Fed.  638;  HANOVER  NAT.  BANK 
v.  MOYSES,  1S6  U.  S.  181,  22  Sup.  Ct.  857,  46  L.  Ed.  1113. 

43  In  re  Waxelbaum  (D.  C.)  98  Fed.  589;  In  re  Mason  (D.  C.)  99 
Fed.  256. 


92  DISTRICT    COURT — BANKRUPTCY.  (Cll.  0 

intended  amendment.44  This  right  to  amend  is  expressly 
recognized  by  the  eleventh  order  in  bankruptcy.46  When  a 
petition  has  been  filed,  it  cannot  be  dismissed  without  notice  to 
the  creditors.  This  is  expressly  required  by  paragraph  "g" 
of  section  59  of  the  act. 

Involuntary  Proceedings. 

Form  3  48  provides  for  the  case  of  an  involuntary  petition. 
Its  first  paragraph  shows  the  jurisdictional  facts — that  is,  the 
debtor's  residence  or  place  of  business — and  also  contains  the 
allegation  that  he  owes  debts  to  the  amount  of  a  thousand  dol- 
lars, as  required  by  section  4b  of  the  bankrupt  act.  It  must 
show  his  business  also.47  Its  next  paragraph  shows  that  the 
petitioners  or  creditors  have  provable  claims  in  excess  of  the 
securities  held  by  them  to  the  sum  of  five  hundred  dollars,  which 
is  the  requisite  prescribed  by  section  59b  of  the  act.  It  then 
sets  out  the  claims.  The  next  paragraph  alleges  insolvency, 
where  necessary,  and  charges  an  act  of  bankruptcy;  stating 
the  facts  of  the  act  of  bankruptcy  with  sufficient  certainty  to 
enable  proper  defense  to  be  made.  It  cannot  merely  follow 
the  language  of  the  statute.48  It  prays  for  a  subpoena,  and 
that  the  debtor  be  adjudged  a  bankrupt,  and  is  sworn  to.  It 
would  not  seem,  under  the  language  of  the  act,  to  be  necessary 
to  file  any  schedule  with  an  involuntary  petition  at  the  outset, 
but  the  ninth  order  in  bankruptcy  49  provides  that,  if  the  bank- 
rupt is  absent  or  cannot  be  found,  the  petitioning  creditor  must 
file,  within  five  days  after  the  adjudication,  a  schedule  giving 
the  names  and  places  of  residence  of  all  the  creditors  of  the 
bankrupt,  according  to  the  best  information  of  the  petitioning 
creditor.     The  eleventh  order  in  bankruptcy  50   allows  these 

*4  In  re  Hill  (D.  C.)  5  Fed.  448. 

4  5  172  U.  S.  657,  18  Sup.  Ct.  v,  43  L.  Ed.  1190. 

4  6  172  U.  S.  681,  18  Sup.  Ct.  xix,  43  L.  Ed.  1208. 

4T  in  re  Taylor,  102  Fed.  728,  42  C.  C.  A.  1. 

4  8  in  re  Cliffe  (D.  C.)  94  Fed.  354;  In  re  Nelson  (D.  C.)  98  Fed.  76, 

4  9  172  U.  S.  656,  18  Sup.  Ct.  v,  43  L.  Ed.  1190. 

eo  172  U.  S.  657,  18  Sup.  Ct.  v,  43  L.  Ed.  1190. 


§  42)  PLEADINGS.  93 

petitions  also  to  be  amended.  The  amendment  may  add  addi- 
tional grounds,  and  it  may  also  make  the  averments  of  the  pe- 
tition more  certain.61 

Not  every  creditor  of  the  bankrupt  can  file  such  petitions. 
By  the  fifty-ninth  section  of  the  act,  this  can  be  done  only  by 
those  who  have  provable  claims.  Those  who  have  preferences 
cannot  prove  their  claims,  except  to  the  excess  of  the  debt 
over  the  security.  This  is  regulated  by  the  fifty-seventh  and 
fifty-ninth  sections  of  the  act. 

The  act  as  first  passed  provided  that  the  claims  of  creditors 
who  had  received  preferences  should  not  be  allowed  unless 
such  creditors  should  surrender  their  preferences.  This,  how- 
ever, has  been  amended  by  the  act  of  February  5,  1903,  so  that 
the  present  form  of  this  paragraph  provides  that  the  claims 
of  creditors  who  have  received  preferences  voidable  under  sec- 
tion 60,  subd.  "b,"  or  to  whom  conveyances,  transfers,  assign- 
ments, or  incumbrances  void  or  voidable  under  section  67,  subd. 
"e,"  have  been  made  or  given,  shall  not  be  allowed  unless  such 
creditors  shall  surrender  such  preferences,  conveyances,  trans- 
fers, assignments,  or  incumbrances. 

Under  this  amendment,  those  who  have  valid  preferences 
can  prove  their  claims  without  being  held  to  waive  their  pref- 
erences. Under  the  act  of  1867  it  had  been  held  that  a  secured 
creditor  who  came  into  the  proceeding  and  proved  his  claim 
waived  his  preference.52 

A  creditor  of  a  partnership  may  prove  against  an  individual 
member  of  the  partnership,  as  that  individual  is  still  his 
debtor.63 

If  the  petition  shows  the  requisite  number  and  amount  of 
creditors  and  debts  on  its  face,  the  court  has  jurisdiction, 
and  the  proceeding  could  not  be  attacked  collaterally  by  show- 
ing that,  as  a  matter  of  fact,  these  jurisdictional  facts  did  not 
exist.     Such  a  question  would  be  for  the  bankrupt  court  it- 

6i  In  re  Mercur  (D.  C.)  95  Fed.  634;  In  re  Nelson  (D.  C.)  98  Fed.  76. 

62  in  re  Bear  (D.  C.)  5  Fed.  53. 

bs  in  re  Mercur  (D.  C.)  95  Fed.  634. 


94  DISTRICT    COURT — BANKRUPTCY.  (Cll.  5 

self,  and  could  not  be  inquired  into  by  another  court  where  the 
proceedings  on  their  face  appear  to  be  regular.64  Paragraph 
"f"  of  the  fifty-ninth  section  of  the  act  allows  creditors  other 
than  the  original  petitioners  to  enter  their  appearance  at  any 
time  and  join  in  the  petition,  or  to  file  an  answer,  and  be  heard 
in  opposition  to  the  petition.  If  it  develops  on  the  examination 
of  the  question  of  fact  that  there  is  a  deficiency  of  creditors,  in 
number  or  amount,  others  who  join  in  the  petition  under  this 
provision  can  be  counted,  and  the  jurisdiction  of  the  court  will 
be  upheld.55 

In  estimating  the  amount,  interest  may  be  included  as  part 
thereof.56 

A  creditor  who  joins  in  the  proceeding  cannot  defeat  the 
proceeding  by  subsequently  withdrawing.57 

Under  the  express  provisions  of  the  act,  neither  a  volun- 
tary nor  involuntary  petition  can  be  dismissed,  even  by  consent 
of  parties,  until  after  notice  to  the  creditors.58 

This  provision  of  the  act,  however,  alludes  only  to  dismissals 
of  petitions  before  a  hearing  on  the  merits.  No  notice  is  re- 
quired when  the  petition  is  dismissed  by  the  court  as  the  re- 
sult of  a  trial.59 

The  only  party  defendant  to  the  petition  in  the  first  instance 
is  the  alleged  bankrupt.  If  there  is  a  proceeding  against  him, 
and  he  is  a  member  of  a  partnership,  other  members  of  the 
partnership  cannot  voluntarily  come  in  and  submit  the  part- 
nership to  the  proceeding,  as  the  act  provides  ample  oppor- 
tunity for  them  to  avail  of  it  by  filing  separate  petitions.60 

54  In  re  Duncan,  Fed.  Cas.  No.  4,131. 

ss  in  re  Romanow  (D.  C.)  92  Fed.  510;  In  re  Bedingfield  (D.  C.) 
96  Fed.  190 ;  In  re  John  A.  Etheridge  Furniture  Co.  (D.  C.)  92  Fed. 
329. 

56  Sloan  v.  Lewis,  22  Wall.  150,  22  L.  Ed.  832. 

57  in  re  Bedingfield  (D.  C.)  96  Fed.  190. 

es  Section  59g  [U.  S.  Comp.  St.  1901,  p.  3445];  In  re  Cronin  (D.  C.) 
98  Fed.  5S4. 

59  Neustadter  v.  Dry  Goods  Co.  (D.  C.)  96  Fed.  830. 
eo  Manoney  v.  Ward  (D.  C.)  100  Fed.  278. 


§  43)  ACTS    OF   BANKRUPTCY.  95 

The  petition  must  allege  insolvency,  except  in  cases  where 
insolvency  is  not  a  material  issue,  and  it  must  also  charge  an 
act  of  bankruptcy  with  reasonable  certainty.  This  brings  up 
for  discussion  the  question,  what  constitute  acts  of  bank- 
ruptcy ?  Here  it  is  important  to  remember  that  the  acts  of  the 
bankrupt  himself  alone  are  being  considered,  and  those  simply 
for  the  purpose  of  deciding  the  question  whether  he  should  be 
adjudicated  a  bankrupt.  There  are  many  dealings  by  him 
which  are  acts  of  bankruptcy  as  far  as  he  is  concerned,  and 
violations  of  the  bankrupt  law,  and  yet  which  are  not  voidable 
as  to  the  grantees  or  beneficiaries  under  them.  The  bankrupt 
may  intend  to  give  a  preference,  for  instance,  and  his  act  in 
giving  it  will  be  an  act  of  bankruptcy;  and  yet  the  grantee, 
if  he  has  not  the  knowledge,  or  means  of  knowledge,  required 
by  the  bankrupt  law,  may  be  enabled  to  sustain  his  preference. 
Hence  it  must  be  remembered  that  at  this  stage  of  the  proceed- 
ing, which  involves  simply  the  issue  whether  the  defendant 
should  be  adjudicated  a  bankrupt,  the  question  of  the  validity 
of  his  acts  as  to  third  parties  is  not  involved.  Those  questions 
come  up  after  adjudication,  when  proceedings  are  taken  to  set 
them  aside. 


ACTS   OF   BANKRUPTCY— DEFINITION   AND    ENUMER- 
ATION. 

43.  Acts  of  bankruptcy  are  such,  acts  as,  in  accordance  with 
the  terms  of  the  statute,  render  him  who  commits 
them  a  subject  for  involuntary  bankruptcy  proceed- 
ings. 
These  acts,  as  specified  in  the  third  section  of  the  act,  may 
be  enumerated  as  follows: 

(a)  Transfers  to  hinder,  delay,  and  defraud  creditors. 

(b)  Illegal  preferences. 

(c)  Suffering  preference  by  legal  process. 

(d)  Assignments. 

(e)  Admission  of  insolvency  in  writing. 


96  DISTRICT    COURT — BANKRUPTCY.  (Cll. 


SAME— TRANSFERS  TO   HINDER,  DELAY,  AND  DEFRAUD 
CREDITORS. 

44.  It  is  an  act  of  bankruptcy  for  a  person  to  convey,  trans- 
fer, conceal,  or  remove,  or  permit  to  be  concealed  or 
removed,  any  part  of  bis  property,  witb  intent  to  bin- 
der, delay,  or  defraud  bis  creditors,  or  any  of  tbem. 
Tbis  is  broader  in  meaning  tban  the  state  statutes 
based  on  tbe  statute  of  Elizabetb.  Solvency  is  a  good 
defense  to  a  petition  filed  under  tbis  act  of  bankruptcy. 

This  subdivision  makes  as  an  act  of  bankruptcy  any  attempt 
to  defraud  his  creditors  which  would  constitute  a  violation  of 
the  state  statutes  based  upon  the  statutes  of  Elizabeth.  How- 
ever, it  goes  further  than  this.  At  common  law,  independent 
of  the  bankrupt  act,  a  preference  of  one  creditor  over  another 
by  a  debtor  was  not  a  violation  of  such  statutes,  if  the  debt 
was  an  actual,  bona  fide  debt;  but,  under  the  bankrupt  act. 
even  a  preference  of  one  bona  fide  creditor  over  another  is  held 
to  be  not  only  an  act  of  bankruptcy,  but  void,  as  intended  to 
hinder,  delay,  and  defraud  creditors;  and  not  only  a  prefer- 
ence of  one  creditor  over  another,  but  a  debt  of  general  assign- 
ment, securing  all  creditors  exactly  alike,  is  held  to  be  not  only 
an  act  of  bankruptcy,  but  void,  as  to  the  trustee  in  bankruptcy, 
as  intended  to  hinder,  delay,  and  defraud  creditors,  for  its 
effect  would  be  to  withdraw  the  administration  of  the  bank- 
rupt's estate  from  the  bankrupt  court  and  place  it  in  the  hands 
of  a  trustee,  and  this  would  hinder  the  creditors  from  the  col- 
lection of  their  debts  through  the  court  primarily  designed  for 
that  purpose.61 

A  sale  of  property,  however,  is  not  necessarily  fraudulent. 
even  though  the  vendor  is  insolvent.  If  made  in  the  ordinary 
course  of  business,  without  circumstances  of  suspicion,  it  would 
be  perfectly  valid  as  to  the  vendee,  and  could  hardly  be  con- 

6i  Boese  v.  King,  108  U.  S.  379,  2  Sup.  Ct.  765,  27  L.  Ed.  760; 
WEST  CO.  v.  LEA,  174  U.  S.  590,  19  Sup.  Ct.  836,  43  L.  Ed.  1098 ; 
Gutwillig,  In  re  (D.  C.)  90  Fed.  475. 


§  45)  ACTS   OF   BANKRUPTCY.  97 

sidered  an  act  of  bankruptcy.  Any  contrary  doctrine  would 
put  a  clog  upon  the  free  alienation  of  property,  which  would 
be  injurious  in  its  effects  upon  the  business  community.02  So, 
where  a  corporation  issued  bonds  to  take  up  its  floated  indebt- 
edness, and  conveyed  its  property  in  trust  to  secure  them,  with 
the  idea  of  thereby  placing  itself  in  a  better  position  to  carry 
on  its  business,  this  could  not  be  held  to  be  an  act  of  bank- 
ruptcy, even  though  the  corporation  at  the  time  might  have 
been  insolvent.63 

It  will  be  observed  that  this  first  act  of  bankruptcy  does  not 
add,  as  several  of  the  others  do,  the  additional  qualification 
that  the  act  must  be  done  while  insolvent.  However,  para- 
graph "c"  of  section  3  provides  that  it  shall  be  a  complete  de- 
fense to  any  proceeding  instituted  under  the  first  subdivision 
of  the  section  to  allege  and  prove  that  the  party  proceeded 
against  was  not  insolvent,  as  defined  in  this  act,  at  the  time  of 
filing  the  petition  against  him.  In  the  case  of  West  Co.  v. 
Lea 64  the  Supreme  Court  decided  that  the  subdivision  in 
this  paragraph  "c"  referred  simply  to  this  provision  relating 
to  transfers  to  hinder,  delay,  and  defraud  creditors,  and  not 
to  any  of  the  others ;  hence,  under  this  decision,  solvency  is  a 
complete  defense  to  a  petition  alleging  such  a  conveyance  by 
the  debtor  as  is  contemplated  under  this  first  subdivision. 


SAME— ILLEGAL   PREFERENCES. 

45.  It  is  an  act  of  bankruptcy  for  a  person  to  transfer,  while 
insolvent,  any  portion  of  his  property  to  one  or  niore 
of  his  creditors,  with  intent  to  prefer  such  creditors 
over  his  other  creditors.  In  this  act  of  bankruptcy  the 
intent  of  the  debtor  alone  is  material. 

This  act  is  described  in  section  3  as  consisting  of  having 
"transferred  while  insolvent  any  portion  of  his  property  to  one 

«2  Tiffany  v.  Lucas,  15  Wall.  410,  21  L.  Ed.  198. 
63  in  re  Union  Pac.  R.  Co.,  Fed.  Cas.  No.  14,376. 
e*  174  U.  S.  590,  19  Sup.  Ct.  836,  43  L.  Ed.  1098. 
Hughes  Fed  .  Jur  .  — 7 


1)8  DISTRICT    COURT — BANKRUPTCY.  (Ch.  5 

or  more  of  his  creditors,  with  intent  to  prefer  such  creditors 
over  his  other  creditors." 

In  considering  this  as  an  act  of  bankruptcy,  independent  of 
the  question  how  far  it  is  voidable,  it  will  be  observed  that  the 
intent  of  the  debtor  alone  is  material.  If  he  intended  a  pref- 
erence, the  fact  that  the  creditor  was  not  aware  of  such  intent, 
or  had  not  such  reasonable  cause  to  suspect  it  as  to  charge  him 
with  knowledge,  will  none  the  less  affect  the  act  as  an  act  of 
bankruptcy,  however  good  a  defense  it  may  be  to  an  attempt  to 
set  it  aside  as  to  the  creditor.65  When  a  debtor  transfers  prop- 
erty to  cover  a  debt,  and  its  necessary  effect  is  to  give  the  cred- 
itor a  preference,  the  intent  to  prefer  will  be  inferred,  as  that 
is  a  natural  consequence  of  the  act.66  Preferences  of  this  sort 
may  be  accomplished  as  well  by  a  payment  in  money  as  by  a 
transfer  of  any  other  kind  of  property.67 

It  is  to  be  noted  that  intent  is  necessary  in  both  the  acts  of 
bankruptcy  so  far  described. 

SAME— SUFFERING  PREFERENCES   BY  LEGAL   PROCESS. 

46.  It  is  an  act  of  bankruptcy  for  a  person  to  suffer  or  permit, 
while  insolvent,  any  creditor  to  obtain  a  preference 
through  legal  proceedings,  and  not  at  least  five  days 
before  a  sale  or  final  disposition  of  any  property  af- 
fected by  such  preference  to  vacate  or  discharge  such 
preference. 

As  the  policy  of  the  bankrupt  law  is  an  equitable  distribution 
of  a  bankrupt's  estate  among  his  creditors,  it  is  necessary  to 
secure  it  not  only  against  the  acts  of  the  bankrupt  himself, 
but  also  against  the  attempt  of  his  creditors  to  secure  priority 
over  each  other.  This  is  the  object  of  this  section,  and,  being 
its  object,  it  is  an  act  of  bankruptcy,  if  such  a  result  is  brought 
about  by  the  creditors,  even  though  the  bankrupt  himself  is 

es  in  re  Rome  Planing  Mill  Co.  (D.  C.)  96  Fed.  812. 

6  6  Johnson  v.  Wald,  93  Fed.  640,  35  C.  C.  A.  522. 

6T  In  re  Ft.  Wayne  Electric  Corp.,  99  Fed.  400,  39  C.  C.  A.  5S2. 


§  46)  ACTS   OF   BANKRUPTCY.  99 

not  privy  to  their  act,  and  merely  suffers  them  to  proceed. 
Under  this  section  an  intent  of  the  debtor  is  unnecessary,  which 
sharply  distinguishes  it  from  the  two  preceding  sections,  and 
also  from  the  corresponding  section  of  the  bankrupt  act  of 
1867.  This  clause  of  the  act  came  under  the  consideration  of 
the  Supreme  Court  in  the  case  of  Wilson  v.  Nelson.68  There 
a  debtor,  long  before  the  filing  of  a  petition  in  bankruptcy, 
and  indeed  before  the  enactment  of  the  bankrupt  law,  had 
given  a  creditor  an  irrevocable  power  of  attorney  to  confess 
judgment  upon  a  promissory  note.  After  the  bankrupt  act 
went  into  effect,  the  creditor  executed  this  power  of  attorney, 
and  proceedings  in  bankruptcy  were  instituted,  alleging  that 
the  act  of  the  debtor  in  permitting  the  execution  of  this  power 
of  attorney  was  an  act  of  bankruptcy.  The  court  sustained 
this  contention,  although  the  debtor  had  merely  passively 
acquiesced,  and  in  fact  was  powerless  to  do  anything.  The 
opinion  was  based  upon  the  language  of  the  present  act,  and 
distinguished  cases  decided  under  the  old  act,  which  it  held 
were  no  longer  in  point.  Prior  to  this  decision,  some  decisions 
of  inferior  courts  had  held  that  in  the  case  of  a  power  of  attor- 
ney given  under  similar  circumstances,  and  afterwards  execut- 
ed, the  act  of  the  debtor  in  permitting  it  was  not  an  act  of 
bankruptcy,  but  these  cases  must  now  be  considered  as  over- 
ruled. 

Care  must  be  taken,  however,  to  distinguish  this  case  from 
a  procedure  to  foreclose  a  lien  created  before  the  act,  or  so  long 
before  the  filing  of  the  petition  as  not  to  be  subject  to  attack. 
In  such  case  the  fact  that  the  lien  is  foreclosed  afterwards  does 
not  make  it  an  act  of  bankruptcy  on  the  part  of  the  debtor. 
The  distinction  is  due  to  the  fact  that  no  lien  arises  at  the  time 
of  giving  a  power  of  attorney  to  confess  judgment,  and  the 
mere  giving  of  that  power  of  attorney  does  not  enable  a  cred- 
itor to  obtain  a  preference,  as  it  may  never  be  executed,  where- 
as, in  proceedings  to  foreclose  a  lien,  the  lien  is  already  in  ex- 
es WILSON  v.  NELSON,  1S3  U.  S.  191,  22  Sup.  Ct.  74,  4G  L.  Ed. 
147. 


100  DISTRICT    COURT — BANKRUPTCY.  (Ch.  5 

istence,  and  the  obtaining  of  the  preference  would  date  back  to 
the  time  of  executing  the  lien,  and  not,  as  in  the  case  of  a  power 
of  attorney,  to  the  time  of  executing  the  power  of  attorney.09 
Under  this  clause,  however,  the  mere  appointment  of  a  receiver 
for  a  corporation  would  not  be  an  act  of  bankruptcy,  as  no  final 
disposition  of  the  property  would  be  made  by  such  appoint- 
ment.70 Creditors  who  wish  to  proceed  under  this  section  do 
not  have  to  wait  until  an  actual  sale,  or  disposition  of  the  prop- 
erty. If  a  sale  has  been  advertised,  they  can  proceed  within 
five  days  before  the  advertisement  is  to  be  carried  out.71  No 
actual  participation  by  the  debtor  is  necessary,  but  mere  passive 
submission  is  an  act  of  bankruptcy  under  this  clause,  if  the 
result  is  that  the  creditor  secures  the  preference.72 

The  language  of  this  clause  is  conditioned  upon  the  debtor 
not  having,  at  least  five  days  before  a  sale  or  final  disposition 
of  any  property  affected  by  such  preference,  vacated  or  dis- 
charged such  a  preference.  The  privilege  of  vacating  or 
discharging  thus  given  to  the  debtor  would  seem,  however., 
to  be  rather  an  empty  one.  If  he  goes  and  pays  off  the  credit- 
or and  releases  the  property,  and  is  insolvent  when  he  does  it, 
that  would  be  an  act  of  bankruptcy  of  itself.  Hence,  if  he  is 
actually  insolvent,  about  the  only  thing  he  can  do  is  to  file  a 
petition  in  bankruptcy  himself;  and  this  procedure  is  hinted 
at  in  the  decisions.73  But  even  that  privilege  cannot  be  exer- 
cised by  a  corporation,  so  that,  if  it  is  insolvent,  nothing  re- 
mains to  it  but  to  let  matters  take  their  course.  Of  course, 
either  an  individual  or  a  corporation  can  defend  on  the  ground 

as  In  re  Chapman  (D.  C.)  99  Fed.  395;  In  re  Ferguson  (D.  C> 
95  Fed.  429 ;  METCALF  v.  BARKER,  187  U.  S.  165,  23  Sup.  Ct  67, 
47  L.  Ed.  122. 

to  In  re  Baker-Ricketson  Co.  (D.  C.)  97  Fed.  489. 

7i  In  re  Rome  Planing  Mill  Co.  (D.  C.)  96  Fed.  812. 

72  In  re  Reickman  (D.  C.)  91  Fed.  624;  In  re  Cliff e  (D.  C.)  94  Fed. 
354. 

7  3  WILSON  v.  NELSON,  183  TJ.  S.  191,  22  Sup.  Ct.  74,  46  L.  Ed. 
147;  In  re  Moyer  (D.  C.)  93  Fed.  1S8. 


§  47)  ACTS    OF   BANKRUPTCY.  101 

of  solvency,  if  the  facts  sustain  it,  for  in  this  subdivision  in- 
solvency is  a  necessary  requisite. 


SAME— ASSIGNMENTS  AS  AN  ACT  OF  BANKRUPTCY. 

47.  It  is  an  act  of  bankruptcy  for  a  person  to  make  a  general 
assignment  for  the  benefit  of  his  creditors,  or,  being 
insolvent,  to  apply  for  a  receiver  or  trustee  for  his 
property,  or  when,  because  of  insolvency,  a  receiver  or 
trustee  is  put  in  charge  of  his  property  under  the  laws 
of  a  state,  of  a  territory,  or  of  the  United  States. 

In  the  act  as  originally  passed,  any  one  committed  an  act 
of  bankruptcy  who  made  a  general  assignment  for  the 
benefit  of  his  creditors.  To  this  the  amendment  of  February 
5,  1903,  has  added  the  following  words :  "or  being  insolvent 
applied  for  a  receiver  or  trustee  for  his  property,  or  because 
of  insolvency,  a  receiver  or  trustee  has  been  put  in  charge  of 
his  property  under  the  laws  of  a  state,  of  a  territory,  or  of 
the  United  States." 

Under  the  act  of  1867,  the  mere  making  of  a  general  as- 
signment, though  without  preferences,  was  an  act  of  bank- 
ruptcy, as  it  was  evidence  of  an  intent  to  prevent  the  adminis- 
istration  of  the  debtor's  property  in  the  bankrupt  court;74 
and  the  making  of  a  general  assignment  is  an  act  of  bank- 
ruptcy, independent  of  any  intent  on  the  part  of  the  debtor 
to  defeat  the  operation  of  the  law,  and  independent  of  the  fact 
whether  he  is  insolvent  or  not,  for  neither  intent  nor  insolven- 
cy are  specified  as  essentials  under  this  clause  as  it  stood  in 
the  original  draft  of  the  present  act.75  It  has  even  been  held 
that  a  paper  purporting  to  be  an  assignment  is  an  act  of 
bankruptcy,  though,  as  a  matter  of  fact,  it  is  invalid,  and 

7*Boese  v.  King,  108  U.  S.  379,  2  Sup.  Ct.  765,  27  L.  Ed.  760; 
WEST  CO.  v.  LEA,  174  U.  S.  590,  19  Sup.  Ct.  836,  43  L.  Ed.  1098. 

7  5  WEST  CO.  v.  LEA,  174  U.  S.  590,  19  Sup.  Ct.  S36,  43  L.  Ed. 
1098. 


102  DISTRICT    COURT — BANKRUPTCY.  (Cll.  5 

though  it  is  a  partnership  assignment  that  does  not  convey 
individual  property.76 

In  the  case  of  Rumsey  &  Sikemier  Co.  v.  Novelty  &  Ma- 
chine Mfg.  Co.77  it  was  held  that,  as  the  act  applies  only  to 
general  assignments,  a  debt  which  reserved  a  balance  to  the 
grantor  after  payment  of  creditors,  if  not  in  actual  bad  faith, 
or  with  no  intent  to  evade  the  law,  was  not  a  general  assign- 
ment, and  did  not  contravene  the  act.  This  decision  would 
seem  subject  to  serious  question.  If  it  purported  to  be  a  con- 
veyance of  all  the  bankrupt's  property  to  secure  all  his  cred- 
itors, it  is  difficult  to  see  how  a  mere  reservation  of  any 
unused  balance  would  prevent  it  from  being  a  general  assign- 
ment. However,  creditors  who  prove  their  claims  before  the 
assignee,  and  participate  in  the  benefit  of  the  general  assign- 
ment, could  not  come  into  court  afterwards  and  allege  such 
assignment  as  an  act  of  bankruptcy.78 

An  application  of  a  corporation  under  a  state  statute  for 
a  dissolution  and  the  appointment  of  a  receiver  would  not  be 
a  general  assignment  or  an  act  of  bankruptcy,  under  the  lan- 
guage of  the  original  act.70 

In  consequence  of  the  decisions  holding  that  the  appoint- 
ment of  a  receiver  was  not  an  act  of  bankruptcy  under  the 
original  act,  the  amendment  was  introduced  which  has  been 
set  out  above.  Clearly,  under  it,  the  appointment  of  a  receiv- 
er, either  at  the  request  of  or  against  the  wishes  of  the  alleged 
bankrupt,  is  an  act  of  bankruptcy,  if  such  appointment  is  made 
on  the  ground  of  insolvency.  Hence  insolvency,  while  not  an 
essential  under  the  first  part  of  this  fourth  clause  as  it  now 
stands,  is  essential  under  the  part  added  by  the  amendment. 

7e  in  re  Meyer,  98  Fed.  976,  39  C.  C.  A.  368. 

77  (D.  C.)  99  Fed.  699. 

7  8  Simonson  v.  Sinsheimer,  95  Fed.  948,  37  C.  C.  A.  337;  In  re 
Romanow  (D.  C.)  92  Fed.  510;  Moulton  v.  Coburn  (C.  C.  A.)  131 
Fed.  201. 

7  9  In  re  Empire  Metallic  Bedstead  Co.,  98  Fed.  981,  39  C.  C.  A. 
372. 


§  48)  ACTS   OF   BANKRUPTCY.  103 

However,   the  appointment  of  a   receiver   on  other   grounds 
than  insolvency  would  still  not  be  an  act  of  bankruptcy. 


SAME— ADMISSION  OF  INSOLVENCY  IN  WRITING 

48.  It  is  an  act  of  bankruptcy  for  a  person  to  admit  in  writ- 
ing his  inability  to  pay  bis  debts,  and  bis  willingness 
to  be  adjudged  a  bankrupt  on  tbat  ground.  Tbis  is  a 
method  open  to  corporations. 

This  act  of  bankruptcy  is  thus  defined  in  the  act,  "ad- 
mitted in  writing  his  inability  to  pay  his  debts,  and  his  will- 
ingness to  be  adjudged  a  bankrupt  on  that  ground."  This 
gives  some  opportunity  to  corporations  to  go  into  bankruptcy 
if  they  wish.  They  need  only  make  this  admission  in  writing 
by  proper  authority,  and  then  three  friendly  creditors  can  do 
the  rest.  The  admission,  however,  must  be  unqualified,  and 
must  be  before  the  filing  of  the  petition.  For  instance,  a  cor- 
poration which  passed  a  resolution  authorizing  one  of  its 
officers  to  make  this  admission  in  the  event  of  an  involuntary 
petition  in  bankruptcy  being  filed  against  said  company  did 
not  accomplish  its  purpose,  for,  under  the  language  of  the  ad- 
mission, it  could  not  be  made  until  the  'petition  was  filed,  and, 
under  the  language  of  the  bankrupt  act,  a  petition  could  not 
be  filed  until  it  had  made  an  admission  in  writing,  and  that 
admission  had  to  be  set  out  in  the  petition.80  It  is  an  interest- 
ing question  what  officers  of  a  corporation  can  make  an  ad- 
mission of  this  sort,  fraught  with  such  far-reaching  conse- 
quences. Under  ordinary  principles  of  corporation  law,  a 
board  of  directors  has  power  to  do  anything  necessary  in  car- 
rying on  the  business  of  the  company,  but  it  has  not  power 
to  take  steps  which  might  cause  a  dissolution  of  the  company. 
Hence  it  has  been  held  that,  under  the  law  of  Massachusetts, 
this  admission  cannot  be  made  by  the  board  of  directors,  and 
that  even  a  subsequent  vote  of  the  stockholders  could  not 

so  in  re  Baker-Rieketson  Co.  (D.  C.)  97  Fed.  4S9. 


104  DISTRICT    COURT — BANKRUPTCY.  (Cll.  5 

date  back  so  as  to  make  it  valid.81  Undoubtedly  the  stock- 
holders themselves  could  make  or  authorize  such  an  admission, 
for  they  can  wind  up  the  corporation.  The  question  depends 
largely  upon  the  corporation  laws  of  the  different  states.  In 
the  case  of  In  re  Marine  Machine  &  Conveyor  Co.82  an  ad- 
mission by  the  president  and  directors  was  held  sufficient, 
though  the  question  of  their  power  to  make  it  did  not  seem  to 
have  received  any  special  attention. 


TIME  OF  FILING  PETITION. 

49.  The  petition  must  be  filed  within  four  months  after  the 
commission  of  the  act  of  bankruptcy.  Petitions  must 
be  made  in  duplicate,  and  both  the  original  and  dupli- 
cate must  be  filed  within  this  period. 

Where  the  act  consists  of  having  made  a  transfer  with  in- 
tent to  defraud  or  to  give  a  preference,  or  of  having  made  a 
general  assignment,  the  four  months  date  from  the  record- 
ing of  the  paper,  if  it  is  a  paper  that  requires  record.  If  the 
transfer  or  preference,  however,  is  made  by  such  an  act 
or  writing  that  it  does  not  require  record,  the  four  months 
date  from  the  time  when  the  beneficiary  takes  notorious,  ex- 
clusive, or  continuous  possession  of  the  property,  unless  peti- 
tioning creditors  have  received  actual  notice  of  such  transfer 
or  assignment.  Under  section  59a,  petitions  must  be  in  du- 
plicate; and  accordingly  it  has  been  held  that  both  the  orig- 
inal and  the  duplicate  must  be  filed  within  the  four  months, 
and  that  the  failure  to  file  the  duplicate  is  not  such  an  error 
as  can  be  subsequently  corrected  under  the  eleventh  order  in 
bankruptcy.83     The  day  on  which  the  act  of  bankruptcy  is 


»i  In  re  Bates  Mach.  Co.  (D.  C.)  91  Fed.  025. 

sz  (D.  C.)  91  Fed.  030.  See,  also,  In  re  Rollins  Gold  &  Silver  Min. 
Co.  (D.  C.)  102  Fed.  9S2. 

8  3  in  re  Stevenson  (D.  C.)  94  Fed.  110;  In  re  Dupree  (D.  C.)  97 
Fed.  28. 


§  4:9)  TIME    OF   FILING    PETITION.  105 

committed  is  excluded  in  the  computation  of  the  time.84 
The  four  months  date  from  the  act  of  bankruptcy,  not  from 
the  mere  recording  of  any  paper  indirectly  connected  with  it. 
Hence,  where  an  insolvent  corporation  sold  land,  and  used 
the  proceeds  to  pay  some  of  its  creditors,  and  this  use  of  the 
proceeds  was  attacked  as  a  preference,  it  was  held  that  the 
time  ran  from-  the  date  of  the  payments  to  the  creditors,  not 
from  the  date  of  recording  the  deed  of  sale  of  the  land.88 

s*  Id. 

« « In  re  Mingo  Valley  Creamery  Ass'n  (D.  0.)  100  Fed.  282. 


106  DISTRICT    COURT — BANKRUPTCY.  (Ch.  6 

CHAPTER  VI. 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued). 

50.  The  Process  on  an  Involuntary  Petition. 

51.  The  Warrant  of  Seizure. 

52.  The  Appointment  of  a  Receiver. 

53.  The  Defense. 

54.  The  Right  to  a  Jury. 

55.  The  Adjudication. 

56.  The  Creditors'  Meeting. 

57.  The  Examination  of  the  Bankrupt 

THE  PROCESS  ON  AN  INVOLUNTARY  PETITION. 

50.  The  process  in  an  involuntary  proceeding  consists  of  an 
order  to  show  cause,  as  a  preliminary,  and  service  of 
a  copy  of  the  petition  and  a  writ  of  subpoena  upon  the 
defendant.  The  subpoena  is  similar  to  the  original 
equity  subpoena,  and  its  service  is  like  that  of  the 
equity  subpoena,  except  in  certain  respects  specified  by 
the  statute. 
In  case  personal  service  cannot  be  made,  an  order  of  publi- 
cation is  provided  for,  -which  is  modeled  upon  the  or- 
der prescribed  in  suits  to  enforce  equitable  claims. 

Section  18a  of  the  bankruptcy  act  provides  that,  upon  the 
filing-  of  a  petition  for  involuntary  bankruptcy,  service  thereof, 
with  a  writ  of  subpoena,  shall  be  made  upon  the  person  therein 
named  as  defendant  in  the  same  manner  that  service  of  such 
process  is  now  had  upon  the  commencement  of  a  suit  in 
equity  in  the  courts  of  the  United  States,  except  that  it  shall 
be  returnable  within  fifteen  days  unless  the  judge  shall,  for 
cause,  fix  a  longer  time. 

The  original  act  went  on  to  provide  that,  in  case  personal 
service  cannot  be  made,  then  notice  shall  be  given  by  pub- 
lication in  the  same  manner  and  for  the  same  time  as  pro- 


§  50)        THE    PROCESS   ON   AN    INVOLUNTARY    PETITION.  107 

vided  by  law  for  notice  of  publication  in  suits  in  equity  in 
courts  of  the  United  States. 

The  amendment  of  February  5,  1903,  changed  this  last 
clause  by  providing  that  this  notice  of  publication  shall  be 
given  in  the  same  manner  and  for  the  same  time  as  provided 
by  law  for  notice  by  publication  in  suits  to  enforce  a  legal  or 
equitable  lien  in  courts  of  the  United  States,  except  that, 
unless  the  judge  shall  otherwise  direct,  the  order  shall  be 
published  not  more  than  once  a  week  for  two  consecutive 
weeks,  and  the  return  day  shall  be  ten  days  after  the  last 
publication,  unless  the  judge  shall,  for  cause,  fix  a  longer  time. 

Under  this  provision  the  first  process  on  an  involuntary 
petition  is  an  order  to  show  cause,  providing  also  that  a  copy 
of  the  petition  and  a  writ  of  subpoena  be  served  upon  the 
defendant.  A  form  of  such  an  order  to  show  cause  is  given 
as  form.  4  x  of  those  prescribed  by  the  Supreme  Court  of 
the  United  States,  and  the  subpoena  as  No.  5  2  of  the  same 
forms.  This  subpoena  is  not  in  the  exact  form  of  the  original 
equity  subpoena,  and  the  act  does  not  require  it  to  be,  but 
merely  requires  that  its  service  shall  be  like  that  of  the  equity 
subpoena,  except  in  the  particulars  named.  This  subpoena 
must  be  issued,  and  cannot  be  waived  by  the  bankrupt.  He 
can  accept  service  on  it,  but  he  cannot  stop  its  issue.  This  is 
for  the  reason  that  creditors  also  can  contest  an  involuntary 
petition,  and  the  issuance  of  the  subpoena  is  necessary  in 
order  to  fix  a  return  day  within  which  creditors  can  contest.3 

The  Order  of  Publication. 

In  case  personal  service  cannot  be  made,  an  order  of  pub- 
lication can  be  had  as  prescribed  by  the  act.  This  order  of 
publication  is  modeled  upon  the  order  prescribed  in  suits  to 
enforce  equitable  liens.  Section  738  of  the  Revised  Statutes 
first  provided  for  service  by  publication  in  such  cases,  but 


1 172  U.  S.  682,  18  Sup.  Ct.  xx,  43  L.  Ed.  1209. 

2  172  U.  S.  6S3,  IS  Sup.  Ct.  xx,  43  L.  Ed.  1209. 

3  In  re  L.  Humbert  Co.  (D.  C.)  100  Fed.  439. 


108  DISTRICT    COURT — BANKRUPTCY.  (Cll.  6 

its  provisions  were  enlarged  and  practically  superseded  by 
the  act  of  March  3,  18T5.4  It  provides,  in  substance,  that, 
when  personal  service  cannot  be  made,  "it  shall  be  lawful 
for  the  court  to  make  an  order'  directing  such  absent  defend- 
ant, or  defendants,  to  appear,  plead,  answer  or  demur,  by  a 
day  certain  to  be  designated."  No  form  of  an  order  of  pub- 
lication is  given  among  those  prescribed  by  the  Supreme 
Court.  Such  an  order  would  be  a  simple  one,  and  need  only 
follow  the  statute.  The  following  is  suggested  as  a  form  for 
the  purpose: 

"It  appearing  that  personal  service  cannot  be  made  upon 
the  defendant  herein,  it  is  ordered  that  said  defendant  do 
appear,  plead,  answer,  or  demur  to  the  petition  within  ten 

days  from  the  last  publication  hereof,  at   ,  in 

the District  of ;   and  it  is  further 

ordered  that  this  order  be  published  in  the  ,  a 

newspaper  published  in  the   of   , 

in    ,  District  of   ,  where  this  suit 

is  pending,  on  the day  of and  the 

day  of " 

THE  WARRANT  OF  SEIZURE. 

51.  If,  through  danger  of  dissipation  of  the  property,  a  neces- 
sity appears  therefor,  it  is  provided  that  an  order  may 
issue  for  the  seizure  of  the  property  on  behalf  of  the 
court,  on  satisfactory  affidavits  having  been  given  with 
bond. 

The  petitioning  creditors  may  simply  issue  and  serve  the 
notice  above,  without  any  interference  with  the  property  of 
the  defendant  bankrupt.  If,  however,  they  believe  that  there 
is  any  danger  of  its  dissipation,  they  are  permitted,  by  sec- 
tion 69a  of  the  act,  on  satisfactory  proof  by  affidavit  that 
the  bankrupt  has  neglected,  or  is  neglecting,  or  is  about  to 

*1U.S.  Comp.  St.  1001,  p.  513. 


§  51)  THE   WARRANT    OF   SEIZURE.  100 

so  neglect  his  property  that  it  has  thereby  deteriorated,  or  is 
thereby  deteriorating,  or  is  about  thereby  to  deteriorate  in 
value,  to  apply  to  the  judge  for  a  warrant  to  the  marshal  to 
seize  and  hold  it  subject  to  further  orders,  and  the  judge  is 
authorized  to  issue  such  a  warrant.  In  such  case  a  bond 
must  be  given  to  indemnify  the  bankrupt  for  any  damages 
inflicted.  This  provision  evidently  contemplates  such  a  pro- 
cedure after  the  filing  of  the  petition,  and  requires  at  least  a 
prima  facie  case  to  be  made  by  affidavit.  The  bond  prescribed 
by  it  and  by  section  3e  of  the  act  is  only  in  case  it  is  desired 
before  adjudication  to  protect  the  property,  as  is  evident 
from  the  language  of  these  two  sections.  After  adjudication 
the  court  has  constructive  custody  of  the  property,  and  in 
such  case  it  can  proceed  by  summary  process  to  take  charge 
of  the  property,  without  requiring  a  bond.6 

This  warrant  to  the  marshal  authorizes  the  seizure  not 
only  of  property  in  the  hands  of  the  bankrupt  himself,  but 
also  of  property  claimed  to  be  his  that  may  be  found  in  other 
hands.6 

This  fact,  however,  should  not  be  allowed  to  confuse  the 
procedure  under  the  involuntary  petition  with  the  summary 
procedure  to  gain  possession  of  the  property.  The  only 
proper  issue  in  the  involuntary  petition  itself  is  whether  the 
bankrupt  has  committed  an  act  of  bankruptcy.  That  is  the 
only  issue  which  the  law  contemplates  as  being  tried  upon 
that  petition,  and  it  would  be  bad  practice  to  combine  in  the 
same  petition  a  proceeding  against  third  parties.  That  issue 
should  be  raised  by  an  additional  petition  to  the  court,  or 
rule  to  show  cause,  so  as  to. keep  the  issues  of  the  two  entirely 
separate.7 

s  BRYAN  v.  BERNHEIMER,  181  U.  S.  188,  195,  21  Sup.  Ct.  55V, 
45  L.  Ed.  814. 

e  BRYAN  v.  BERNHEIMER,  181  U.  S.  1S8,  195,  21  Sup.  Ct.  557. 
45  L.  Ed.  814. 

7  In  re  Kelly  (D.  C.)  91  Fed.  504. 


HO  DISTRICT    COURT — BANKRUPTCY.  (Cll.  6 

Under  such  a  warrant  the  marshal  may  take  charge  of 
property  in  the  hands  of  an  assignee  under  a  general  assign- 
ment, as  the  bankruptcy  act  supersedes  even  proceedings  of 
this  sort  in  state  courts  under  state  insolvent  laws.8 

The  Supreme  Court  has  held  that  where  there  has  been  an 
adjudication  in  bankruptcy,  but  a  trustee  has  not  been  ap- 
pointed, the  bankrupt  court  could  retake  the  property  by 
summary  process,  on  petition,  out  of  the  hands  of  parties 
who  had  replevied  the  property  in  the  bankrupt's  possession 
after  the  adjudication.  The  court,  however,  bases  this  right 
rather  upon  subdivision  15  of  section  2,  allowing  the  courts 
to  make  such  orders,  issue  such  process,  and  enter  such 
judgments  in  addition  to  those  specifically  provided  for  as 
may  be  necessary  for  the  enforcement  of  the  provisions  of 
this  act,  and  upon  clause  3  of  bankruptcy  order  12,*  than 
upon  the  clause  authorizing  the  order  of  seizure.9 

This  warrant  can  also  be  used  to  compel  the  agent  of  the 
bankrupt,  who  has  bankrupt  money  in  his  possession  and 
asserts  no  adverse  claim,  to  deliver  the  money  to  a  proper 
custodian.  In  such  case  a  mere  refusal  to  surrender  the 
money  does  not  constitute  an  adverse  claim,  and  the  party 
holding  it  can  be  proceeded  against  by  a  rule  to  show  cause.10 

This  principle,  however,  does  not  interfere  with  the  general 
principle  of  comity  of  courts.  If  a  state  court  has  possession 
of  bankrupt's  property  to  enforce  a  lien  created  not  against 
the  provisions  of  the  bankrupt  act,  and  is  proceeding  to  en- 
force that  lien,  the  bankrupt  court  will  not  dispossess  it 
merely  because  the  final  judgment  enforcing  the  lien  may 
come  within  the  four  months  named  in  section  67  of  the  bank- 
rupt act.11 

s  In  re  Sievers  (D.  C.)  91  Fed.  3G6. 
*172  U.  S.  657,  18  Sup.  Ct.  vi,  43  L.  Ed.  1190. 

»  White  v.  Schloerb,  178  U.  S.  542,  20  Sup.  Ct.  1007,  44  L.  Ed.  1183. 
io  Mueller  v.  Nugent,  1S4  U.  S.  1,  22  Sup.  Ct.  209,  46  L.  Ed.  405. 
i 1  METCALF  v.   BARKER,  1ST  U.  S.  165,  23  Sup.  Ct.  07.   47  L. 
Ed.  122;   Pickens  v.  Roy,  1S7  U.  S.  177,  23  Sup.  Ct.  78,  47  L.  Ed.  12S. 


§  52)  THE   APPOINTMENT   OF   A   RECEIVER.  Ill 


THE  APPOINTMENT  OF  A  RECEIVER. 

52.  Further  provision  is  made  for  the  protection  of  the  bank- 
rupt estate  in  the  allowance  of  a  receiver  for  this  pur- 
pose urhen  necessity  therefor  is  shown.  But  this  step 
is  by  no  means  a  matter  of  course,  and  the  exercise  of 
the  power  should  be  carefully  guarded. 

Section  2,  subd.  3,  of  the  act,  allows  the  courts  to  appoint 
receivers,  or  the  marshals,  upon  the  application  of  the  parties 
in  interest,  in  case  the  courts  shall  find  it  absolutely  neces- 
sary, for  the  preservation  of  estates,  to  take  charge  of  the 
property  of  bankrupts  after  the  filing  of  a  petition,  and  until 
it  is  dismissed  or  the  trustee  has  qualified.  The  cautious 
language  of  this  clause  shows  that  such  a-  receiver  is  by  no 
means  a  matter  of  course,  and  that  the  exercise  of  this  power 
should  be  carefully  guarded.  The  receiver  is  intended  as  a 
mere  curator  or  temporary  custodian  of  the  property. 

The  act  of  1867,  though  it  did  not  contain  any  express  pro- 
vision allowing  the  appointment  of  a  receiver,  was  construed 
as  authorizing  their  appointment  in  cases  where  they  were 
necessary,  though  the  courts  held  them  to  be  mere  receivers 
to  hold  with  limited  powers.12  Nor  would  they  be  appointed 
unless  it  appeared  that  the  probabilities  of  the  case  were  in 
favor  of  the  complainant.13 

Under  the  present  act,  the  decisions  so  far  have  given  them 
rather  more  extended  powers  than  that  of  mere  custodians. 
They  may  be  appointed  not  only  for  the  purpose  of  holding 
the  property  of  the  bankrupt,  but  of  stopping  the  dissipation 
of  the  property  by  a  grantee  alleged  to  hold  it  illegally,  and 
for  that  purpose  may  not  only  hold  the  property  that  they 
get  possession  of  without  suit,  but  may  proceed  in  the  courts 
to  protect  property  alleged  to  belong  to  the  bankrupt.  This 
was  expressly  decided  as  to  the  powers  of  a  receiver  in  the 

12  Lansing  v.  Manton,  Fed.  Cas.  No.  8,077. 
is  Wilkinson  v.  Dobbie,  Fed.  Cas.  No.  17,070. 


112  DISTRICT    COURT — BANKRUPTCY.  (Ch.  <> 

case  of  In  re  Fixen,14  and  would  seem  to  follow  necessarily 
from  the  language  of  the  court  in  Bryan  v.  Bernheimer.15 
The  latter  case  was  a  proceeding  by  the  marshal,  but  the  prin- 
ciple is  the  same.  As  to  property  in  another  state,  the  re- 
ceiver could  not  sue,  but  he  can  apply  to  the  court  for  such 
temporary  relief  as  is  necessary  to  preserve  it  until  the  ap- 
pointment of  a  trustee.16  He  may  take  property,  though 
in  charge  of  a  state  insolvent  court.17  And  if  the  property 
is  of  such  a  nature  as  to  render  it  necessary,  he  may  sell  it.18 

THE  DEFENSE. 

53.  The  defense  is  set  up  by  the  bankrupt  or  by  a  creditor  by 
means  of  a  demurrer,  plea,  or  answer;  the  questions 
generally  raised  being  that  of  the  jurisdiction,  or 
whether  there  can  be  an  adjudication  in  bankruptcy; 
the  creditors  being  allowed  to  make  only  such  defenses 
as  could  be  set  up  by  the  bankrupt. 

Section  18b  of  the  bankrupt  act  provides  that  the  bankrupt 
or  any  creditor  may  appear  and  plead  to  the  petition  within 
ten  days  after  the  return  day,  or  within  such  further  time  as 
the  court  may  allow.  The  amendment  of  February  5,  1903, 
has  reduced  this  ten  days  to  five  days.  It  is  apparent,  there- 
fore, that  the  defense  may  be  made  either  by  the  bankrupt 
himself  or  by  a  creditor ;  and  for  this  reason,  as  stated  above, 
a  subpoena  must  issue  so  as  to  fix  the  time  within  which  the 
creditor  can  appear.19 

The  fact,  however,  that  a  creditor  may  also  defend,  does 
not  give  him  the  right  to  raise  any  issue  that  the  bankrupt 

i*  (D.  C.)  96  Fed.  74S. 

iB  BRYAN  v.  BERNHEIMER,  181  U.  S.  188,  21  Sup.  Ct.  557,  45 
L.  Ed.  814. 

is  In  re  Schrom  (D.  C.)  97  Fed.  760. 

it  In  re  John  A.  Etheridge  Furniture  Co.  (D.  O.)  92  Fed.  329. 

is  in  re  Becker  (D.  C.)  98  Fed.  407. 

i»  In  re  L.  Humbert  Co.  (D.  C.)  100  Fed.  439;  Goldman  v.  Smith 
(D.  C.)  93  Fed.  182. 


§  53)  THE    DEFENSE.  11LJ 

could  not  raise.  On  the  original  petition  the  validity  of  trans- 
fers, as  far  as  the  creditor  is  concerned,  is  not  involved. 
When  he  defends  he  simply  stands  in  the  shoes  of  the  bank- 
rupt, and  sets  up  such  defense  as  the  bankrupt  alone  could 
set  up.20  Assuming  that  the  jurisdictional  facts  are  all 
made  out,  practically  the  only  issue  that  the  bankrupt  or  a 
creditor  can  raise  on  the  petition  itself  is  whether  an  act  of 
bankruptcy  has  been  committed.  This  is  clear  from  the  lan- 
guage of  many  clauses  in  the  act.  For  instance,  section  18d 
speaks  of  the  bankrupt  or  any  of  his  creditors  appearing 
within  the  time  limited  and  controverting  "the  facts  alleged 
in  the  petition."  Section  59b  provides  that  the  prayer  of 
the  petition  is  "to  have  him  adjudged  a  bankrupt,"  and  sec- 
tion 59  adds  a  provision  that  creditors  other  than  the  original 
petitioners  may  "be  heard  in  opposition  to  the  prayer  of  the 
petition" ;  thus  showing  that,  even  when  creditors  appear, 
they  can  only  resist  the  adjudication  in  bankruptcy,  and 
cannot  raise  questions  as  to  the  validity  of  conveyances  to 
them,  or  other  questions  personal  to  them.  There  are  other 
means  provided  for  raising  these  questions. 

As  to  the  form  of  the  defense,  the  provision  that  the  bank- 
rupt or  any  creditor  may  appear  and  plead  is  not  to  be  con- 
strued literally,  as  meaning  that  the  form  of  the  defense  must 
be  a  plea.  Section  19a  provides  that  a  person  against  whom 
an  involuntary  petition  has  been  filed  shall  be  entitled  to  a 
jury  trial  on  filing  a  written  application  therefor  "at  or  before 
the  time  within  which  an  answer  may  be  filed."  Section  59f 
provides  that  creditors  other  than  original  petitioners  may  at 
any  time  enter  their  appearance  and  join  in  the  petition,  "or 
file  an  answer  and  be  heard  in  opposition  to  the  praver  of 
the  petition."  It  is  clear,  therefore,  that  the  word  "plead" 
is  merely  equivalent  to  "making  defense,"  and  that  the  form 

eo  Sinsheimer  v.  Simonson,  107  Fed.  898,  47  C.  C.  A.  51;  Louis- 
ville Trust  Co.  v.  Comingor,  184  U.  S.  18,  22  Sup.  Ct.  293,  46  L.  Ed. 
413. 

Hughes  Fed.  Jur. — 8 


114  DISTRICT    COURT — BANKRUPTCY.  (Cll.  6 

of  defense  may  be  according  to  the  ordinary  rules  of  plead- 
ing;  that  is,  by  plea,  demurrer,  or  answer. 

Form  6  of  those  prescribed  by  the  Supreme  Court 21  can  be 
followed  in  most  cases,  and  is  sufficient,  but  this  does  not 
prevent  a  more  elaborate  defense  and  a  setting  up  of  other 
matters.22  In  fact,  this  form  could  not  possibly  answer  for 
many  defenses  that  might  be  made,  as,  for  instance,  the  ques- 
tion whether  the  requisite  number  of  creditors  have  joined, 
and  whether  their  debts  aggregate  the  right  amount. 

THE  RIGHT  TO  A  JURY. 

54.  The  bankrupt  is  given  the  right  to  a  jury  npon  the  ques- 
tion of  his  insolvency  and  the  question  whether  he 
has  committed  an  act  of  bankruptcy,  provided  he  files 
a  written  application  therefor  at  or  before  the  time 
within  which  an  answer  may  be  filed. 

This  means  a  jury  trial  according  to  the  course  of  the  com- 
mon law,  not  a  mere  issue  out  of  chancery,  and  hence  pro- 
ceedings on  a  trial  are  reviewable  only  by  writ  of  error  and 
on  bills  of  exceptions,  where  bills  of  exceptions  are  ordinarily 
necessary.28 

Ordinarily  the  burden  of  proof  is  upon  the  creditors  to 
make  out  the  facts  charged  in  the  petition.24  Section  3,  "c" 
and  "d,"  however,  expressly  provides  that  the  burden  of  prov- 
ing solvency  shall  be  upon  the  bankrupt  when  that  is  set  up 
as  a  defense  to  the  charge  that  the  bankrupt  has  attempted 
to  hinder,  delay,  or  defraud  his  creditors,  or  when  he  fails 
to  appear  with  his  books,  papers,  and  accounts,  and  submit 
to  an  examination,  and  give  testimony  as  to  all  matters  tend- 

21  172  U.  S.  684,  18  Sup.  Ct.  xxi,  43  L.  Ed.  1209. 
«  Mather  v.  Coe  (D.  C.)  92  Fed.  333;   In  re  Paige  (D.  C.)  99  Fed. 
538. 

23  ELLIOTT  v.  TOEPPNER,  187  U.  S.  327,  23  Sup.  Ct  133,  47  L. 
Ed.  200. 

24  In  re  Rome  Planing  Mill  Co.  (D.  C.)  96  Fed.  812;  In  re  Taylor, 
102  Fed.  728,  42  C.  C.  A.  1. 


§  05)  THE   ADJUDICATION.  Hj 

ing  to  estatfish  solvency  or  insolvency,  on  a  charge  of  making 
an  illegal  preference,  or  suffering  or  permitting  one. 

As  the  trial  is  according  to  the  course  of  the  common  law, 
this  means  that  the  evidence  will  be  taken  before  the  jury  in 
open  court,  except  in  cases  where  it  can  be  taken  by  deposi- 
tion under  the  present  rules  of  common-law  practice  in  the 
federal  courts. 

THE  ADJUDICATION. 

55.  The  next  step  in  the  progress  of  a  bankruptcy  case,  if  the 
issue  raised  on  the  petition  is  decided  against  the 
Bankrupt,  is  the  adjudication. 

In  case  of  a  voluntary  petition  this  is  a  matter  of  course.25 
In  case  of  an  involuntary  petition  it  is  a  matter  of  course  if 
the  issues  are  decided  against  the  bankrupt,  and  it  is  also  a 
matter  of  course  if  the  bankrupt  makes  no  defense.26  If  the 
judge  is  present,  the  adjudication  is  made  by  him.  If  he  is 
absent  from  the  district  or  the  division  of  the  district  in  which 
the  petition  is  filed,  the  clerk  refers  the  case  to  the  referee, 
and  the  referee  on  such  reference  can  make  the  adjudica- 
tion.27 The  order  of  reference,  therefore,  when  made  by  the 
clerk,  is  made  before  adjudication,  and  for  the  purpose  of 
enabling  the  referee  to  make  the  adjudication.  When  made 
by  the  judge,  it  is  after  adjudication,  and  for  the  purpose  of 
investing  the  referee  with  the  general  supervision  of  the  case 
in  its  details,  which  the  bankruptcy  act  contemplates.  The 
things  required  to  be  stated  in  the  order  are  set  out  in  bank- 
ruptcy order  12,28  and  its  form  constitutes  No.  14  29  and  No. 
15  30  of  the  forms  prescribed  by  the  Supreme  Court. 

«  Bankr.  Act,  §  18g;    HANOVER  NAT.  BANK  v.  MOYSES,  186 
U.  S.  181,  22  Sup.  Ct.  857,  46  L.  Ed.  1113. 
2  6  Bankr.  Act,  §  18e. 
27  Bankr.  Act,  §  18e-g;  Id.  §  38a  (1). 
2  8  172  U.  S.  657,  18  Sup.  Ct.  vi,  43  L.  Ed.  1190. 
2£>  172  U.  S.  090,  18  Sup.  Ct.  xxv.  43  L.  Ed.  1212. 
3C  172  U.  S.  GOO,  18  Sup,  Ct.  xxv,  43  L.  Ed.  1212. 


116  DISTRICT    COURT — BANKRUPTCY.  (Ch.  6 


THE  CREDITORS'  MEETING. 

56.  The  first  important  step  after  the  adjudication  is  the 
meeting  of  creditors.  The  thirty-ninth  section  of  the 
act  requires  the  referee  to  give  the  notice  of  such  meet- 
ing, and  the  fifty-eighth  section  requires  at  least  ten 
days'  notice  by  mail,  and  also  by  publication.  The 
proceedings  at  a  creditors'  meeting  are  prescribed  by 
the  fifty-fifth  section  of  the  act.  The  judge  or  referee 
presides,  and  the  important  business  before  the  meet- 
ing is  the  allowance  or  disallowance  of  claims  of  cred- 
itors, the  examination  of  the  bankrupt,  and  the  elec- 
tion of  a  trustee. 

Proof  of  Claims. 

The  proof  and  allowance  of  claims  are  regulated  by  the 
fifty-seventh  section  of  the  act,  which  has  been  amplified  by 
bankruptcy  order  21. 31  The  proof  is  under  oath;  must 
specify  the  claim,  the  consideration,  the  payments,  the  securi- 
ties held  therefor,  if  any,  and  that  the  same  is  justly  owing. 
Creditors  are  defined  in  the  first  section  of  the  act  as  includ- 
ing any  one  who  owns  a  demand  or  claim  provable  in  bank- 
ruptcy, and  may  include  a  duly  authorized  agent,  attorney,  or 
proxy.  Hence  only  those  creditors  whose  claims  are  prov- 
able in  bankruptcy  are  included.  The  claims  which  are  prov- 
able are  set  out  in  the  sixty-third  section  of  the  act.  The 
bankrupt  himself,  as  fiduciary,  can  prove  a  claim  against  his 
estate.82 

Under  the  present  act,  secured  creditors  and  those  who 
have  priority  can  prove  their  claims  and  participate  in  the 
meeting,  but  only  for  such  part  of  their  debt  as  is  not  covered 
by  their  securities.  And  "secured  creditors,"  in  this  sense, 
mean  creditors  secured  by  the  bankrupt,  not  creditors  se- 
cured by  claims  against  other  parties.  For  instance,  where 
a  creditor  had  a  judgment  against  the  bankrupt  and  another, 

«i  172  U.  S.  660,  18  Sup.  Ct  vii.  43  L.  Ed.  1192. 
3  2  Warner  v.  Spooner  (C.  C.)  3  Fed.  890. 


§  56)  THE    CREDITORS*    MEETING.  117 

and  levied  on  the  property  of  the  other  as  well,  he  could  still 
prove  his  claim  against  the  bankrupt.33  And  so  a  partner 
who  has  bought  up  judgments  against  the  firm  can  prove 
against  the  estate  of  an  individual  partner,  though,  of  course, 
not  in  such  a  manner  as  to  come  into  competition  with  part- 
nership debts  on  which  he  himself  would  be  responsible.34 

Under  section  57g  of  the  act  as  first  passed,  the  claims  of 
creditors  wTho  have  received  preferences  could  not  be  allowed 
unless  such  creditors  surrendered  their  preferences.  It 
will  appear  hereafter,  in  discussing  the  question  what  prefer- 
ences are  voidable,  that  a  transfer  or  other  method  of  prefer- 
ence adopted  by  the  bankrupt  may  be  a  preference  as  to  him, 
and  yet  may  be  valid  as  to  the  party  preferred,  if  the  latter 
did  not  have  reasonable  cause  to  believe  that  it  was  intended 
as  a  preference.  Hence  care  must  be  taken,  in  this  connec- 
tion, to  distinguish  between  preferences  voidable  even  as  to 
the  creditor,  and  preferences  valid  as  to  him,  and  yet  against 
the  bankrupt  law.  The  idea  of  the  bankrupt  law  is  equality 
of  distribution  of  the  assets  among  the  creditors,  as  far  as 
it  is  possible  to  bring  about  that  equality  without  interfering 
with  freedom  of  alienation  in  ordinary  business  transactions. 
Hence  this  provision  of  the  bankrupt  law  was  intended  to 
put  the  creditor  to  his  election.  He  had  to  choose  between 
holding  on  to  his  preference,  or  giving  up  his  hope  of  divi- 
dends from  the  bankrupt's  estate.  He  could  not  claim  his 
preference,  and  still  insist  on  his  dividend.  Hence,  under  the 
act,  as  first  passed,  even  a  creditor  whose  preference  could 
not  be  set  aside  had  to  surrender  it  before  he  could  partici- 
pate in  the  benefits  of  the  act.35  And  Judge  Lowell  held  that 
even  a  preference  which  could  not  be  set  aside  for  the  reason 


as  In  re  Headley  (D.  C.)  97  Fed.  765. 

34  In  re  Carinichael  (D.  C.)  96  Fed.  594. 

35  in  re  Ft.  Wayne  Electric  Corp.  (D.  C.)  96  Fed.  803;  Id.,  99  Fed. 
400,  39  C.  C.  A.  5S2;  In  re  Fixen.  102  Fed.  295,  42  C.  C.  A.  354,  50 
L.  R.  A.  005 ;  Pirie  v.  Trust  Co.,  1S2  U.  S.  438,  21  Sup.  Ct.  906,  45  L. 
Ed.  1171. 


118  DISTRICT    COURT — BANKRUPTCY.  (Ch.  0 

that  it  haa  been  made  for  more  than  four  months  had  to 
be  surrendered  before  the  creditor  could  prove  his  claim.30 
In  other  words,  under  the  original  act,  if  the  result  of  a  pay- 
ment or  transfer  was  a  preference,  that  preference  had  to 
be  surrendered  before  the  creditor  could  claim  under  the 
bankruptcy  proceeding.  However,  the  amendment  of  Feb- 
ruary 5,  1903,  changed  section  57g  of  the  original  act  so  as 
to  provide  that  the  claims  of  creditors  who  have  received 
preferences  voidable  under  section  60,  subd.  "b,"  or  to  whom 
conveyances,  transfers,  assignments  or  incumbrances,  void 
or  voidable  under  section  67,  subd.  "e,"  have  been  made  or 
given,  shall  not  be  allowed,  unless  such  creditors  shall  sur- 
render such  preference,  conveyances,  transfers,  assignments, 
or  incumbrances.  This  amendment  was  evidently  intended 
to  change  these  decisions,  and  to  allow  creditors  who  had 
received  a  preference  innocently  to  still  hold  on  to  their  prefer- 
ence and  prove  their  claim.  For  it  must  be  remembered  that 
the  receipt  of  a  preference  is  not  considered  as  an  actual 
fraud.37  Here,  too,  the  preference  contemplated  is  a  prefer- 
ence by  the  bankrupt.  A  payment  to  the  creditor  by  a  third 
party  is  not  a  preference.38 

There  have  been  quite  a  number  of  decisions  on  the  ques- 
tion whether  payments  on  running  accounts  constitute  a  pref- 
erence or  not.  It  will  appear,  as  the  result  of  the  authorities, 
that  where  there  is  an  account  current,  with  goods  being 
bought  and  payments  being  made  right  along,  payments  on 
running  accounts  which  do  not  substantially  diminish  the 
debtor's  assets  and  are  substantially  covered  by  additional 
purchases  are  not  preferences,  but  payments  which  do  sub- 
stantially diminish  the  assets  are  preferences.39 

se  in  re  Jones  (D.  C.)  110  Fed.  736.  But  compare  In  re  Chaplin, 
115  Fed.  162.  171. 

3  7  Streeter  v.  Bank,  147  U.  S.  36,  13  Sup.  Ct.  236,  37  L.  Ed.  68. 

ss  Dresser  v.  Lumber  Co.  (D.  C.)  119  Fed.  531. 

39  Ph-ie  v.  Trust  Co.,  182  U.  S.  438,  21  Sup.  Ct.  906,  45  L.  Ed. 
1171;  JAQUITH  v.  ALDEN,  1S9  U.  S.  78,  23  Sup.  Ct.  649,  47  L. 
Ed.  717. 


§  56)  THE   CREDITORS'   MEETING.  119 

Paragraph  "i"  of  section  57  permits  parties  liable  to  the 
creditor  secondarily  to  the  bankrupt  to  prove  the  claim  in 
the  creditor's  name,  and  be  subrogated  to  his  rights,  if  the 
creditor  fails  to  prove  it.  However,  when  there  is  only  a 
part  payment,  the  claim  cannot  be  proved  by  the  surety,  but 
must  be  proved  by  the  creditor.40  And  in  such  case  the  surety 
stands  in  the  shoes  of  the  creditor,  and  can  only  prove  the 
claim  if  the  creditor  could,  so  that,  if  the  creditor  is  prevented 
by  a  preference  from  proving  his  claim,  the  surety  cannot 
prove  it.41 

Under  this  section  a  partner  who  had  sold  out  his  interest 
in  the  firm  under  an  agreement  that  the  remaining  partner 
should  assume  all  the  firm  debts,  and  who  has  been  held 
liable  for  one  of  these  debts,  practically  occupies  the  position 
of  surety,  and  can  prove  such  a  claim,  though  not  so  as  to 
come  into  competition  with  debts  for  which  he  might  person- 
ally be  liable.42 

The  Debts  Provable  against  a  Bankrupt's  Estate. 

All  debts  which  are  in  existence  as  of  the  date  of  filing 
the  petition  are  provable  against  the  estate.43  The  debts 
provable  are  enumerated  44  as  those  which  are  a  fixed  liability, 
as  evidenced  by  a  judgment  or  an  instrument  in  writing, 
absolutely  owing  at  the  time  of  the  filing  of  the  petition, 
whether  then  payable  or  not,  with  any  interest  thereon  which 
would  have  been  recoverable  at  that  date,  or  with  a  rebate 
of  interest  upon  such  as  are  not  payable  and  did  not  bear  in- 
terest. Under  this  clause  the  right  to  prove  a  debt  depends 
upon  its  nature,  and  not  upon  the  probability  of  realizing 
anything  out  of  it.46 


to  In  re  Heyman  (D.  C.)  95  Fed.  800. 
«  In  re  Schmechel  Cloak  &  Suit  Co.  (D.  C.)  104  Fed.  64. 
4  2  In  re  Dillon  (D.  C.)  100  Fed.  627. 

"  in  re  Burka  (D.  C.)  104  Fed.  326;    In  re  Swift,  112  Fed.  315. 
50  C.  C.  A.  264. 
44  Section  63. 
45Ini'  Bates  (D.  C.)  100  Fed.  2G3. 


120  DISTRICT    COURT BANKRUPTCY.  (Ch.  G 

There  is  a  conflict  of  decisions  whether  a  judgment  in  a 
state  court  for  a  fine  in  a  criminal  case  comes  under  this 
section  or  not.  District  Judge  Jackson,  of  West  Virginia, 
has  held  that  it  comes  within  the  terms  of  this  clause  and  is 
provable.46  On  the  other  hand,  District  Judge  Evans,  of 
Kentucky,  has  held  that  such  a  debt  is  not  provable;  going 
on  the  theory  that,  if  provable,  it  is  barred  by  a  discharge, 
and  that  it  could  not  have  been  the  intent  of  Congress  to 
practically  confer  upon  any  one  but  the  state  officials  what 
would  be  substantially  a  pardoning  power.47  Notwithstand- 
ing the  force  of  this  objection,  such  a  debt  would  certainly 
come  under  the  language  of  this  clause,  as  being  a  fixed  lia- 
bility evidenced  by  a  judgment;  and,  when  the  language  of 
the  act  is  so  clear,  it  would  hardly  seem  necessary  to  go  out- 
side of  its  language. 

A  liability  which  is  in  existence  at  the  time  of  the  filing  of 
the  petition  and  becomes  fixed  thereafter  can  be  proved,  pro- 
vided it  is  done  within  the  one  year  allowed  for  proof  of 
claims.48 

In  the  case  of  an  agreement  by  a  party  to  pay  an  annuity, 
a  given  penalty  being  fixed  in  the  agreement,  the  holder  of 
the  annuity  can  prove  this  as  a  debt  to  the  amount  of  the 
penalty  if  the  annuity  calculated  on  the  usual  life  tables  equals 
or  exceeds  the  penalty.49 

In  case  of  a  nonnegotiable  instrument  which  has  been  as- 
signed, the  assignee  merely  stands  in  the  shoes  of  the  as- 
signor, and  can  only  prove  for  such  an  amount  as  the  as- 
signor could  prove.50 

A  claim  for  alimony  based  upon  a  decree  allowing  it  is 
not  provable  against  the  estate.     It  is  not  supposed  to  arise 

46  in  re  Alderson  (D.  C.)  98  Fed.  588. 

47  In  re  Moore  (D.  C.)  Ill  Fed.  145. 

*8  in  re  Gerson  (D.  C.)  105  Fed.  891;  Moch  v.  Bank,  107  Fed. 
897,  47  C.  C.  A.  49. 

4  9  Cobb  v.  Overman,  109  Fed.  65,  48  C.  C.  A.  223,  54  L.  R.  A.  369. 
so  in  re  Wiener  &  Goodman  Shoe  Co.  (D.  C.)  96  Fed.  949. 


§  56)  the  creditors'  meeting.  I-1 

out  of  contract,  and  it  is  not  a  fixed  liability  in  the  sense  of 
the  statute.51 

The  next  largest  class  of  debts  enumerated  are  those 
founded  upon  a  contract,  express  or  implied.  A  claim  found- 
ed upon  a  contract  must,  however,  at  least  be  certain.  For 
instance,  a  claim  for  breach  of  warranty  due  to  an  outstand- 
ing dower  interest,  when  both  husband  and  wife  are  still  liv- 
ing, is  too  contingent  to  be  made  the  subject  of  a  provable 
claim,  though  a  claim  for  breach  of  warranty  actually  ma- 
tured is  not.52 

The  fifth  subdivision  of  this  paragraph  allows  provable 
debts  to  be  reduced  to  judgment  after  the  filing  of  the  petition, 
and  before  the  consideration  of  an  application  for  a  discharge. 
The  effect  of  a  judgment,  however,  is  not  to  create  any  lien, 
but  simply  to  establish  the  debt.53  Hence  under  this  act  the 
mere  suggestion  of  bankruptcy  is  not  sufficient  to  stop  pro- 
ceedings in  a  state  court  on  a  provable  claim,  as  such  claim 
can  still  be  prosecuted  to  judgment. 

The  last  clause  of  the  sixty-third  section  provides  that  un- 
liquidated claims  against  the  bankrupt  may,  pursuant  to  ap- 
plication to  the  court,  be  liquidated  in  such  manner  as  it  shall 
direct.  For  this  reason  an  unliquidated  claim  cannot  be  the 
basis  of  a  proceeding  in  involuntary  bankruptcy,  as  it  can- 
not be  liquidated  until  the  court  directs,  and  the  court  cannot 
give  any  directions  until  some  valid  bankruptcy  proceeding 
has  already  been  instituted.54 

Under  this  provision,  claims  arising  out  of  contract,  whose 
amount  is  not  fixed,  must  be  liquidated  under  the  direction  of 

•  i  Audubon  v.  Shufeldt,  181  U.  S.  575,  21  Sup.  Ct.  735,  48  L.  Ed. 
1009.  See,  also,  Dunbar  v.  Dunbar,  190  U.  S.  340,  23  Sup.  Ct.  757, 
47  L.  Ed.  1084. 

"Riggin  v.  Magwire,  15  Wall.  549,  21  L.  Ed.  232;  In  re  Morales 
(D.  C.)  105  Fed.  761.  See,  also,  Dunbar  v.  Dunbar,  190  TJ.  S.  340, 
23  Sup.  Ct.  757,  47  L.  Ed.  1084. 

53  in  re  McBryde  (D.  C.)  99  Fed.  686. 

s*  In  re  Brinckmann  (D.  C.)  103  Fed.  65 ;  In  re  Morales  (D.  C.)  105 
Fed.  761. 


122  DISTRICT    COURT — BANKRUPTCY.  (Ch.  6 

the  court.  Where  the  result  of  bankruptcy  is  to  put  an  end 
to  a  continuing  contract,  damages  for  failing  to  complete 
such  an  executory  contract  up  to  the  date  of  filing  the  petition 
can  be  proved.55 

Damages  arising  out  of  a  tort — as,  for  instance,  an  assault 
and  battery — must  be  liquidated  before  they  can  be  proved,  if 
they  are  provable  at  all.56 

Damages  are  so  provable  if  they  arise  out  of  contract,  even 
though  the  form  of  the  action  may  be  ex  delicto.  For  instance, 
damages  for  a  breach  of  contract  of  marriage  are  provable.57 

But  in  the  case  of  In  re  Hirschman,58  District  Judge  Mar- 
shall decides  that  debts  which  are  in  their  nature  torts  are 
not  provable  against  the  bankrupt's  estate  at  all.  He  holds 
that  the  only  debts  provable  are  those  named  in  section  63a 
of  the  act,  all  of  which  arise  out  of  contract,  in  some  form  or 
another,  and  that  the  concluding  clause  of  that  same  section, 
allowing  the  liquidation  of  unliquidated  claims,  simply  refers 
to  the  claims  provable  under  the  first  section,  and  is  not 
intended  to  enlarge  the  list  of  debts  which  could  be  proved 
beyond  those  enumerated  in  the  first  section. 

Debt  Barred  by  Statute  of  Limitations. 

There  has  been  a  good  deal  of  discussion,  both  under  the 
former  act  and  the  present  one,  as  to  the  circumstances  un- 
der which  a  debt  barred  by  the  statute  of  limitations  may  be 
proved.  It  may  be  considered  settled  by  the  preponderance  of 
authority,  at  least,  that  the  bar  of  the  limitation  is  applied  as 
of  the  district  of  the  debtor's  residence  at  the  time  of  adjudi- 
cation."   And  the  better  opinion,  also,  is  that,  if  not  barred  at 

6  6  in  re  Silverman  (D.  C.)  101  Fed.  219;  In  re  Stern,  116  Fed. 
604,  54  C.  C.  A.  60. 

5  6  in  re  Hirschman  (D.  C.)  104  Fed.  69. 

67  in  re  McCauley  (D.  C.)  101  Fed.  223;  In  re  Fife  (D.  C.)  109 
Fed.  880. 

es  (D.  C.)  104  Fed.  69. 

*9  in  re  Noesen,  Fed.  Cas.  No.  10.28S;  In  re  Cornwall,  Fed.  Cas. 
No.  3,250. 


§  56)  THE  creditors'  meeting.  123 

the  date  of  adjudication,  it  cannot  be  barred  at  all  during 
the  pendency  of  the  proceedings — in  other  words,  the  filing  of 
a  proceeding  in  bankruptcy  stops  the  running  of  the  statute.60 
It  is  well  settled,  also,  that,  although  the  plea  of  the  statute 
of  limitations  is  usually  a  personal  plea,  yet,  in  a  bankruptcy 
proceeding,  where  creditors  are  equally  interested,  any  cred- 
itor may  plead  it,  or  may  require  the  trustee  to  plead  it. 
And  the  insertion  of  the  barred  debt  in  the  bankrupt's  peti- 
tion does  not  revive  it.61 

In  spite  of  the  language  of  the  authorities,  however,  it  is 
difficult  to  understand  why  a  debt  barred  by  the  statute  of 
limitations  is  not  a  provable  debt.  It  would  seem,  on  prin- 
ciple, that  this  would  depend  on  the  policy  of  the  special 
statute  which  was  under  consideration.  In  some  states  the 
statute  of  limitations  destroys  both  the  contract  and  the  rem- 
edy; in  others,  it  merely  takes  away  the  remedy,  and  the 
debt  remains  a  debt  which  is  enforceable,  or  not,  according 
to  the  question  whether  any  plea  of  the  statute  is  interposed 
or  not. 

Hence  in  many  of  the  states  the  defense  of  the  statute  can- 
not be  raised  by  demurrer,  but  must  be  pleaded  specially.  In 
Virginia,  for  instance,  the  statute  must  be  the  subject  of  a 
special  plea,  and  cannot  be  raised  by  demurrer,  for  the 
reason  that  there  certainly  is  a  cause  of  action,  and  whether 
the  debtor  chooses  to  set  up  the  bar,  or  not,,  is  a  matter  of 
defense.  As  the  provability  of  a  debt  depends  not  upon  the 
question  of  the  likelihood  of  recovery,  but  upon  its  exist- 
ence, it  would  seem  that  in  suits  of  this  sort  it  could  be 
proved,  and  would  have  to  be  taken  notice  of,  unless  either 
the  bankrupt,  a  creditor,  or  the  trustee  should  plead  the 
statute.     The  question,  however,  is  hardly  a  practical  one, 

«o  In  re  Wright,  Fed.  Cas.  No.  18,068;  In  re  Eldridge.  Fed.  Cas. 
No.  4,331. 

6i  In  re  Lipinan  (D.  C.)  94  Fed.  353;  In  re  Resler  (D.  C.)  95  Fed. 
804;   In  re  Lafferty  (D.  C.)  122  Fed.  558. 


124  DISTRICT    COURT BANKRUPTCY.  (Ch.  6 

since  they  would  be  almost  certain  to  plead  the  statute  in 
every  case. 

THE  EXAMINATION  OF  THE  BANKRUPT. 

57.  The  law  requires  the  bankrupt  to  submit  to  an  examina- 
tion as  to  any  matters  which  may  affect  the  adminis- 
tration and  settlement  of  his  estate. 

Section  7  of  the  bankrupt  law  requires  the  bankrupt  to  at- 
tend the  first  meeting  of  his  creditors,  if  directed  by  a  court  or 
judge  so  to  do,  and,  when  present,  submit  to  an  examination 
concerning  the  conduct  of  his  business,  the  cause  of  his  bank- 
ruptcy, his  dealings  with  his  creditors  and  other  persons,  the 
amount,  kind,  and  whereabouts  of  his  property,  and,  in  addi- 
tion, all  matters  which  may  afreet  the  administration  and  set- 
tlement of  his  estate.  It  also  provides  that  his  testimony  given 
in  such  an  examination  cannot  be  used  against  him  in  any 
criminal  proceedings,  and  further  that  he  cannot  be  required 
to  attend  beyond  a  given  distance  unless  provision  is  made 
for  the  payment  of  his  expenses.  This  examination  is  one  of 
the  most  important  matters  that  can  come  before  the  first 
meeting  of  the  creditors.  The  fifty-eighth  section  entitles  cred- 
itors to  ten  days'  notice  of  all  examinations  of  the  bankrupt, 
though  the  general  notice  as  to  the  first  meeting  is  so  word- 
ed as  to  give  this  requisite  notice. 

The  bankrupt  is  not  only  required  to  submit  to  an  exam- 
ination at  the  first  meeting,  but  at  other  meetings,  provided 
the  necessary  notices  are  given,  and  provision  as  to  expenses. 
etc.,  carried  out.  As  he  alone  can  give  the  information  almost 
essential  to  the  proper  management  of  the  bankrupt  estate, 
the  ninth  section  of  the  act  provides  a  method  of  holding  him 
to  bail,  or  under  a  modified  form  of  custody  upon  satisfactory 
proof  that  he  is  about  to  leave  the  district  to  avoid  examina- 
tion, and  that  his  departure  will  defeat  the  proceedings  in 
bankruptcy. 


§  57)  THE    EXAMINATION    OF   THE    BANKRUPT.  125 

In  the  case  of  In  re  Lipke  62  it  was  held  that  this  ninth  sec- 
tion of  the  act  was  not  exclusive  in  its  provisions  as  to  requir- 
ing the  attendance  of  the  bankrupt,  but  that,  under  subdivision 
15  of  the  second  section,  which  gives  the  courts  a  right  to 
make  such  orders,  issue  such  process,  and  enter  such  judg- 
ments in  addition  to  those  specifically  provided  for  as  may 
be  necessary  for  the  enforcement  of  a  provision  of  this  act,  a 
writ  in  the  nature  of  ne  exeat  may  be  issued  to  prevent  the 
bankrupt  from  leaving  the  district,  even  in  cases  not  covered 
by  the  ninth  section. 

When  the  bankrupt  is  present  for  examination,  creditors 
whose  claims  are  in  the  list,  even  though  their  debts  are  not 
proved,  are  entitled  to  examine.63  When  the  examination  is 
under  way,  it  has  been  held  that  a  voluntary  bankrupt  cannot 
refuse  to  give  up  papers  or  necessary  documents  on  the 
ground  that  they  might  incriminate  him  or  might  be  used 
against  him  in  criminal  proceedings ;  it  being  held  that  the 
filing  of  a  voluntary  petition  is  a  waiver  of  the  constitutional 
provision  protecting  a  man  from  self-incrimination.64 

It  has  also  been  held  that  a  bankrupt  cannot  refuse  to  be 
sworn  at  the  outset  of  the  examination  on  the  ground  that  it 
might  incriminate  him,  but  that  he  can  claim  the  constitution- 
al provision  during  the  examination  whenever  a  question  is 
asked  that  might  incriminate  him.  And  in  this  same  case 
it  was  held,  also,  in  accordance  with  the  great  weight  of  de- 
cisions on  that  subject,  that  the  provision  in  the  seventh  sec- 
tion to  the  effect  that  the  bankrupt's  testimony  should  not  be 
offered  against  him  in  any  criminal  proceedings  was  not  as  ex- 
tensive a  protection  as  the  constitutional  provision  against 
self-crimination :  implying  that,  where  his  answers  might 
give  information  that  would  lead  to  a  better  preparation  of  a 

«a  (D.  C.)  98  Fed.  970. 

«3  in  re  Jehu  (D.  C.)  94  Fed.  638;  In  re  Walker  (D.  C.)  96  Fed.  550. 

«*  In  re  Sapiro  (D.  C.)  92  Fed.  340. 


126  DISTRICT   COURT — BANKRUPTCY.  (Cll.  0 

criminal  case  against  him,  he  was  protected  by  the  constitu- 
tional provision,  and  could  not  be  required  to  answer.65 

The  examination  of  the  bankrupt  may  go  into  transactions 
more  than  four  months  old,  if  pertinent  in  explaining  transac- 
tions less  than  four  months  old.66 

The  twenty-first  section  of  the  act  as  originally  passed  per- 
mitted the  examination  not  only  of  the  bankrupt,  but  of  any 
designated  person,  concerning  the  acts,  conduct,  or  property 
of  the  bankrupt  whose  estate  is  in  process  of  administration, 
provided  that  designated  person  was  a  competent  witness  un- 
der the  laws  of  the  state  in  which  the  proceeding  was  pend- 
ing. Under  this  provision  the  wife  of  the  bankrupt  could 
be  examined  if  she  was  a  competent  witness  under  the  laws 
of  the  state ;  otherwise  not.  And  her  examination  as  to  prop- 
erty in  her  possession,  if  reasonably  pertinent,  might  also  go 
back  of  four  months.57 

This  twenty-first  section  of  the  act,  however,  has  been 
amended  by  the  act  of  February  5,  1903,  so  as  to  read  as 
follows:  "Sec.  21.  (a)  A  court  of  bankruptcy  may,  upon  ap- 
plication of  any  officer,  bankrupt,  or  creditor,  by  order  require 
any  designated  person,  including  the  bankrupt  and  his  wife, 
to  appear  in  court  or  before  a  referee  or  the  judge  of  any 
state  court,  to  be  examined  concerning  the  acts,  conduct,  or 
property  of  a  bankrupt  whose  estate  is  in  process  of  admin- 
istration under  this  act :  provided  that  the  wife  may  be 
examined  only  touching  business  transacted  by  her  or  to 
which  she  is  a  party,  and  to  determine  the  fact  whether 
she  has  transacted  or  been  a  party  to  any  business  of  the 
bankrupt." 

Under  this  amendment  the  wife  is  made  a  competent  witness 
irrespective  of  the  provisions  of  the  state  law, 

«5  In  re  Scott  (D.  C.)  95  Fed.  815;  In  re  Levin  (D.  C.)  131  Fed.  388. 

««  In  re  Brundage  (D.  C.)  100  Fed.  613. 

6T  in  re  Foerst  (D.  C.)  93  Fed.  100;   In  re  Mayer  (D.  C.)  97  Fed.  328. 


§  5S)  DISTRICT    COURT — BANKRUPTCY.  1-7 

CHAPTER  VH. 

THE  DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued). 

58.  The  Trustee. 

59.  The  Title  of  the  Trustee. 

60.  The  Trustee's  Duties  of  Administration — Recordation  of  Decree 

of  Adjudication. 

61.  Same — The  Collection  of  the  Assets. 

62.  Same — Trustee's  Rights  against  Parties  Claiming  Adversely  un- 

der Alleged  Void  Transfers,  etc. 

63.  Same — The  Circumstances  Avoiding  an  Alleged  Illegal  Transfer. 

64.  Same — Same — Insolvency. 

65.  The  Trustee's  Interest  in  Insurance  Policies. 

66.  The  Trustee's  Interest  in  Rights  of  Action. 

67.  The  Trustee's  Power  of  Sale. 

68.  The  Trustee's  Duties  as  to  Distribution  of  the  Estate. 

69.  The  Trustee's  Duties  as  to  the  Bankrupt's  Exemptions. 

THE  TRUSTEE. 

58.  The  election  of  a  trustee  is  part  of  the  business  of  the 
first  creditors'  meeting.  The  forty-fourth  section  of 
the  act  vests  the  right  to  select  a  trustee  or  trustees 
in  the  creditors,  except  that,  if  the  creditors  do  not 
appoint  a  trustee  or  trustees,  the  court  shall  do  so. 
And  the  seventeenth  subdivision  of  the  second  section 
also  gives  the  court  the  right  to  appoint  trustees  pur- 
suant to  the  recommendation  of  creditors,  or  where 
they  neglect  to  recommend  the  appointment  of  trus- 
tees. 

In  voting  on  the  election  of  a  trustee  and  other  matters 
coming  before  the  creditors'  meeting,  the  fifty-sixth  section  of 
the  act  provides  that  a  majority  vote,  in  number  and  amount, 
of  all  creditors  whose  claims  have  been  allowed  and  are  pres- 
ent, shall  be  necessary  to  pass  upon  any  matter  before  the 
meeting.  Under  this  provision,  all  creditors  are  counted 
whose  claims  have  been  allowed  and  who  are  present  in  per- 


12S  DISTRICT    COURT — BANKRUPTCY.  (Cll.  7 

son  or  by  duly  authorized  attorney.  If,  for  the  purpose  of 
voting,  the  attorney's  proxy  is  defective,  or  he  has  no  proxy 
at  all,  and  on  that  ground  cannot  vote,  the  creditor  is  not 
present.1 

A  general  representation  of  a  creditor  as  attorney  is  not 
sufficient  to  give  him  a  vote.  The  attorney  must  have  an  ex- 
press written  proxy.2 

The  election  of  a  trustee  is  subject  to  approval  by  the  ref- 
eree or  judge,  but  this  power  of  approval  does  not  confer  the 
power  to  set  aside  the  choice  of  the  creditors  and  name  a 
trustee  not  chosen  by  the  creditors.  The  effect  of  the  veto  is  to 
necessitate  another  election.  It  is  only  when  the  creditors 
fail  to  make  any  appointment  that  the  referee  or  judge  can  act.3 

The  trustee  is  required  by  section  45  to  be  some  individual 
competent  to  perform  the  duties,  and  a  resident  of  the  judicial 
district  wherein  he  is  appointed,  or  a  corporation  authorized 
by  its  charter  to  act  as  such ;  and  he  is  required  by  the  fiftieth 
section  of  the  act  to  give  bond  for  the  faithful  performance 
of  his  official  duties. 


THE  TITLE  OF  THE  TRUSTEE. 

59.  The  trustee's  title  vests  as  of  the  date  of  the  adjudication, 
under  the  express  provisions  of  section  70  of  the  act. 
But  although  his  title  vests  as  of  that  date,  it  covers 
all  property  owned  hy  the  bankrupt  at  the  date  of 
filing  the  petition,  including  in  this  all  property  which, 
has  been  illegally  assigned. 

The  title  of  the  trustee  is  the  usual  title  of  a  statutory  as- 
signee.   It  is  not  the  title,  by  any  means,  of  an  innocent  holder 

i  In  re  Henschel  (D.  C.)  109  Fed.  861;    Id.,  113  Fed.  443,  51  C.  C. 
A.  277. 

2  In  re  Scully  (D.  C.)  108  Fed.  372;  In  re  Lazoris  (D.  C.)  120  Fed. 
716. 

3  In  re  Lewensohn  (D.  C.)  9S  Fed.  576;    In  re  Hare  (D.  C.)  119 
Fed.  240. 


§  59)  THE    TITLE    OF   THE    TRUSTEE.  129 

of  negotiable  paper.  He  acquires  the  bankrupt's  interest 
when  that  is  such  an  interest  as  would  be  good  against  the 
bankrupt's  creditors.  For  instance,  under  the  mechanic  lien 
laws  of  the  different  states,  some  of  these  liens  relate  back 
to  the  date  of  commencing  the  work ;  others,  only  to  the  date 
of  giving  the  notice.  If,  therefore,  work  has  been  done  which 
would  be  the  subject  of  a  lien  from  the  inception  of  the 
work,  the  trustee  would  take  the  property  subject  to  that  lien. 
If,  on  the  other  hand,  the  lien  dated  only  from  the  giving  of 
the  notice,  and  that  notice  had  not  been  given  at  the  com- 
mencement of  proceedings,  the  trustee  takes  the  property  clear 
of  the  lien.- 

On  the  other  hand,  any  liens  or  charges  that  would  be 
void  as  against  the  bankrupt  and  his  creditors  are  voidable 
by  the  trustee ;  and,  conversely,  any  which  are  good  as  against 
the  creditors  of  the  bankrupt  are  good  against  the  trustee.5 
It  may  very  well  be,  however,  that,  even  where  it  eventually 
turns  out  that  the  transaction  is  valid,  yet,  for  the  purpose  of 
administering  the  bankrupt  estate,  the  court  would  have  juris- 
diction of  any  property  in  the  possession  of  the  bankrupt,  or 
to  which  the  trustee  might  claim  a  color  of  title.  In  other 
wordc,  under  the  seventh  subdivision  of  section  2,  the  estate 
to  be  administered  by  the  court  may  be  more  extensive  than 
the  property  which  would  on  full  investigation  finally  pass  to 
the  trustee.6 

The  mere  fact,  however,  that  certain  property  is  in  the 
personal  custody  of  the  bankrupt,  does  not  necessarily  sub- 
ject it  to  the  control  of  the  trustee.  For  instance,  property 
that  the  bankrupt  might  hold  in  trust,  and  that  is  so  ear- 

*  In  re  Coulter,  Fed.  Cas.  No.  3,276 ;  In  re  Roeber,  121  Fed.  449, 
57  C.  C.  A.  565;   In  re  Laird,  109  Fed.  550,  48  C.  C.  A.  538. 

b  NORTON  v.  HOOD,  124  U.  S.  20,  8  Sup.  Ct.  357,  31  L.  Ed.  364; 
In  re  New  York  Economical  Printing  Co.,  110  Fed.  514,  49  C.  C.  A. 
133;   Chesapeake  Shoe  Co.  v.  Seldner.  122  Fed.  593,  58  C.  C.  A.  261. 

«  In  re  Union  Trust  Co.,  122  Fed.  937,  59  C.  C.  A.  461. 

Hughes  Fed.Jub.— 9 


130  DISTRICT    COURT — BANKRUPTCY.  (Ch.  7 

marked   as   to   be   capable  of   identification,   would   not  pass 
to  the  assignee.7 

While  the  title  of  the  trustee  dates  from  the  adjudication, 
the  property  which  vests  in  him  dates  as  of  the  day  of  filing 
the  petition.8 

Character  of  Property  Which  Vests  in  Trustee. 

The  character  of  the  property  which  vests  in  him  is  defined 
in  the  seventieth  section  of  the  act.  The  two  most  general 
classes  named  in  that  section  are  the  fourth  and  fifth,  which 
are  property  transferred  by  the  bankrupt  in  fraud  of  his  cred- 
itors, and  property  which  prior  to  the  filing  of  the  petition  he 
could  by  any  means  have  transferred,  or  which  might  have 
been  levied  upon  and  sold  under  judicial  process  against  him. 
This  last  section  has  been  held  to  have  a  very  extensive  mean- 
ing. A  seat  in  a  stock  exchange  which  could  be  transferred 
vests  in  the  trustee,  even  though  the  transfer  is  so  uncertain 
that  it  requires  the  consent  of  certain  authorities  of  the  ex- 
change.9 

Under  the  act  of  1867  it  was  held  that  a  claim  to  share  in 
the  sum  paid  to  the  United  States  under  the  Geneva  award  on 
account  of  the  Alabama  captures  vested  in  the  assignee,  who 
was  the  officer  corresponding  to  the  trustee  under  the  present 
act.10 

Under  this  clause  the  property  transferred  by  the  bankrupt 
in  fraud  of  his  creditors  includes  any  property  which  could  be 
recovered  by  the  trustee  on  any  of  the  other  grounds  specified 
in  the  act. 

For  instance,  it  includes  property  recoverable  under  the 
clause  defining  illegal  transfers.  This  is  covered  by  the  sixtieth 
section  of  the  act.  In  its  original  form,  it  provided  that  a 
person  should  be  deemed  to  have  given  a  preference,  if,  being 

i  Hosmer  v.  Jewett,  Fed.  Cas.  No.  6,713. 

•  In  re  Garcewich,  115  Fed.  87,  53  C.  C.  A.  510;  NORTON  v. 
HOOD,  124  U.  S.  20,  8  Sup.  Ct.  357,  31  L.  Ed.  364. 

•  PAGE  v.  EDMUNDS,  187  U.  S.  596,  23  Sup.  Ct.  200,  47  L.  Ed.  318. 
io  Williams  v.  Heard,  140  U.  S.  529,  11  Sup.  Ct.  8S5,  35  L.  Ed.  550. 


§  59)  THE    TITLE    OF   THE    TRUSTEE.  131 

insolvent,  he  has  procured  or  suffered  a  judgment  to  be  en- 
tered against  himself  in  favor  of  any  person,  or  made  a 
transfer  of  any  of  his  property,  and  the  effect  of  the  en- 
forcement of  such  judgment  or  transfer  will  be  to  enable  any 
one  of  his  creditors  to  obtain  a  greater  percentage  of  his  debt 
than  any  other  of  such  creditors  of  the  same  class.  And  para- 
graph "b"  of  the  same  act  provided  that  if  the  bankrupt  shall 
have  given  a  preference  within  four  months  before  the  filing  of 
the  petition,  or  after  the  filing  of  the  petition  and  before  the 
adjudication,  and  the  person  receiving  it  or  to  be  benefited 
thereby,  or  his  agent  acting  therein,  shall  have  had  reasonable 
cause  to  believe  that  it  was  intended  thereby  to  give  a  pref- 
erence, it  shall  be  voidable  by  the  trustee,  and  he  may  recover 
the  property  or  its  value  from  such  person. 

These  two  paragraphs  have  been  very  materially  changed 
by  the  amendment  of  February  5,  1903,  so  that  they  now  read 
as  follows : 

"Sec.  60  (a).  A  person  shall  be  deemed  to  have  given  a  pref- 
erence if,  being  insolvent,  he  has,  within  four  months  before 
the  filing  of  the  petition,  or  after  the  filing  of  the  petition  and 
before  the  adjudication,  procured  or  suffered  a  judgment  to  be 
entered  against  himself  in  favor  of  any  person,  or  made 
a  transfer  of  any  of  his  property,  and  the  effect  of  the  enforce- 
ment of  such  judgment  or  transfer  will  be  to  enable  any  one 
of  his  creditors  to  obtain  a  greater  percentage  of  his  debt  than 
any  other  of  such  creditors  of  the  same  class.  Where  the 
preference  consists  in  a  transfer,  such  period  of  four  months 
shall  not  expire  until  four  months  after  the  date  of  the  record- 
ing or  registering  of  the  transfer,  if  by  law  such  recording  or 
registering  is  required." 

"(b)  If  a  bankrupt  shall  have  given  a  preference  and  the 
person  receiving  it,  or  to  be  benefited  thereby,  or  his  agent 
acting  therein,  shall  have  had  reasonable  cause  to  believe 
that  it  was  intended  thereby  to  give  a  preference,  it  shall  be 
voidable  by  the  trustee,  and  he  may  recover  the  property  or 
its  value  from   such  person.     And,  for  the  purpose  of  such 


132  DISTRICT    COURT — BANKRUPTCY.  (Cll.  7 

recovery,  any  court  of  bankruptcy,  as  hereinbefore  defined, 
and  any  state  court  which  would  have  had  jurisdiction  if  bank- 
ruptcy had  not  intervened,  shall  have  concurrent  jurisdiction." 

Where  the  preference  is  in  the  creation  of  liens,  it  is  covered 
by  the  sixty-seventh  section  of  the  act.  This  section  has  not 
been  changed  by  the  act  of  February  5,  1903,  except  that  to 
paragraph  "e"  has  been  added  a  sentence  conferring  upon  the 
bankruptcy  court  concurrent  jurisdiction  with  the  state  court 
which  would  have  had  jurisdiction  if  bankruptcy  had  not  in- 
tervened in  recovering  property  illegally  transferred. 

In  order  to  constitute  an  illegal  preference,  actual  value 
must  pass.  Book  entries  intended  to  have  that  purpose,  but 
which  are  frustrated  and  create  no  harm,  are  not  of  them- 
selves preferences.11  Nor  is  it  a  preference  to  pay  claims  on 
account  of  a  dower  interest  which  is  a  valid  charge  upon  the 
property.12 

An  assignment  for  creditors  is  also  a  preference,  and  even 
where  the  state  law  provides  that,  in  the  administration  of 
assignments,  all  claims  for  wages  shall  be  preferred,  that  pref- 
erence falls  with  it.  The  priorities  claimed  by  the  bankrupt 
law  are  exclusive  in  such  case,  and,  where  a  priority  is  given 
by  a  state  law,  not  in  the  nature  of  a  lien  on  the  property,  but 
simply  in  the  nature  of  a  direction  to  an  assignee  in  a  general 
assignment  to  pay  the  same  prior  to  other  claims,  such  claims 
cannot  be  so  treated  if  their  priority  arises  by  virtue  of  making 
a  deed  of  assignment  which  is  itself  voidable.13 

It  is  not,  however,  a  preference  where  a  debt  is  paid  in  full, 
and  then  a  new  bill  sold.  In  such  case  the  new  bill  constitutes 
a  new  transaction,  and  the  creditor  does  not  even  have  to 
surrender  his  prior  payment.14 

Under  paragraph  "d"  of  the  sixty-seventh  section,  liens  cre- 

11  In  re  Steam  Vehicle  Co.  of  America  (D.  C.)  121  Fed.  939. 

12  In  re  Riddle's  Sons  (D.  C.)  122  Fed.  559. 

is  In  re  Slomka,  122  Fed.  630,  58  C.  C.  A.  322. 
i*  In  re  Wolf  &  Levy  (D.  C.)  122  Fed.  127;   JAQUITH  v.  ALDEN, 
189  U.  S.  78,  23  Sup.  Ct.  G49,  47  L.  Ed.  717. 


§  59)  THE    TITLE    OF   THE    TRUSTEE.  133 

ated  for  a  present  consideration,  and  properly  recorded,  where 
record  is  necessary,  and  free  from  fraud,  are  upheld,  although 
the  bankrupt  at  the  time  of  the  creation  of  the  lien  is  in- 
solvent. And  where  a  mortgage  covers  such  a  debt,  and  also 
an  old  debt  which  is  against  the  act,  it  will  be  upheld  to  the 
extent  of  the  valid  debt.15 

Under  the  provision  setting  aside  conveyances  intended 
to  hinder,  delay,  and  defraud,  such  a  conveyance  may  be  at- 
tacked as  violating  the  ordinary  state  statutes  based  upon 
the  statute  of  13  Elizabeth,  even  though  it  could  not  be  at- 
tacked under  the  illegal  preference  provision  of  the  bankrupt 
act.16 

Paragraph  "f"  of  the  sixty-seventh  section  avoids  all  liens 
acquired  in  invitum  within  four  months  prior  to  the  filing 
of  the  petition  in  bankruptcy.  Under  this  section,  if  the  lien 
was  in  existence  more  than  four  months  prior,  the  mere  fact 
that  it  was  consummated  by  a  judgment  or  attempted  to  be 
enforced  by  execution  after  the  four  months  did  not  avoid  it. 
If,  on  the  other  hand,  an  execution  had  been  levied  and  the 
property  sold  under  it,  the  purchaser,  if  innocent  of  fraud,  ac- 
quired a  good  title  ;  and  the  money,  if  the  lien  was  void,  would 
go  to  the  trustee,  or,  if  valid,  would  go  to  the  execution  cred- 
itor. So  that  the  question  of  the  lien  on  an  execution  is  not 
so  important  as  the  question  of  the  lien  of  the  judgment.  If 
the  judgment  is  more  than  four  months  old,,  it  is  valid,  even 
though  the  execution  is  issued  within  the  four  months.  If  the 
judgment  is  less  than  four  months  old,  it  is  invalid,  and  the 
execution  upon  it  is  also  invalid.17 

is  City  Nat.  Bank  of  Greenville  v.  Bruce,  109  Fed.  69,  48  C.  C.  A. 
236;  In  re  Soudan  Mfg.  Co.,  113  Fed.  804,  51  C.  C.  A.  476;  Young  v. 
Upson  (C.  C.)  115  Fed.  192;  In  re  Hull  (D.  C.)  115  Fed.  858;  Davis 
v.  Turner,  120  Fed.  605,  56  C.  C.  A.  669. 

i6  Means  v.  Dowd,  128  U.  S.  273,  9  Sup.  Ct.  65,  32  L.  Ed.  429. 

it  In  re  Franks  (D.  C.)  95  Fed.  635;  In  re  Kenney  (D.  C.)  95  Fed. 
427 ;  In  re  Breslauer  (D.  C.)  121  Fed.  910 ;  Clarke  v.  Larremore,  1S8 
U.  S.  486,  23  Sup.  Ct.  363,  47  L.  Ed.  555 ;  Owen  v.  Brown,  120  Fed. 
812,  57  C.  C.  A.  180. 


134  DISTRICT    COURT — BANKRUPTCY.  (Ch.  7 

Even  if  the  lien  is  simply  a  lien  acquired  by  the  riling  of  a 
creditors'  bill,  and  subject  to  the  contingencies  of  such  a  suit, 
it  is  valid,  if  finally  upheld  on  the  merits,  provided  it  has  been 
acquired  more  than  four  months  before  the  filing  of  the  pro- 
ceedings in  bankruptcy.18 


THE   TRUSTEE'S  DUTIES   OF  ADMINISTRATION— RECOR- 
DATION  OF  DECREE   OF   ADJUDICATION. 

60.  The  trustee  is  required,  within  thirty  days  after  the  ad- 

judication, to  file  a  certified  copy  of  the  decree  of  ad- 
judication in  the  office  where  conveyances  of  real  es- 
tate are  recorded  in  every  county  where  the  bankrupt 
owns  real  estate   not  exempt  from  execution. 

The  forty-seventh  section  of  the  act  sets  out  the  trustee's 
duties  in  connection  with  the  management  of  the  estate.  A 
very  important  addition  to  the  original  section  has  been  made 
by  the  act  of  February  5,  1903.  It  provides  that  the  trustee 
shall  within  thirty  days  after  the  adjudication  file  a  certified 
copy  of  the  decree  of  adjudication  in  the  office  where  con- 
veyances of  real  estate  are  recorded  in  every  county  where  the 
bankrupt  owns  real  estate  not  exempt  from  execution,  and 
pay  the  fee  for  such  filing.  The  importance  of  this  as  a  link  in 
the  chain  of  title  of  the  bankrupt's  estate  is  very  great. 

SAME— THE  COLLECTION  OF  THE  ASSETS. 

61.  It  is  the  trustee's  duty  to  collect  the  assets  of  the  bank- 

rupt estate. 

If  the  bankrupt  himself  does  not  turn  over  the  proper  books 
or  other  papers,  the  trustee  may  institute  contempt  proceed- 
ings to  compel  him  to  do  so.19     As  to  any  property  in  the 

is  METCALF  v.  BARKER,  187  U.  S.  165,  23  Sup.  Ct.  67,  47  L. 
Ed.  122. 

i»  In  re  Wilson  (D.  C.)  116  Fed.  419. 


§  61)  trustee's  duties  of  administration.  135 

hands  of  parties  not  asserting  adverse  claim  thereto  he  may 
proceed  summarily  in  the  bankruptcy  court  itself.20  Nor  is  a 
party  an  adverse  claimant  merely  because  he  refuses  to  sur- 
render property.  If  he  sets  up  an  adverse  claim,  and  the 
pleading  which  sets  it  up  shows  on  its  face  no  title,  then  the 
bankruptcy  court  has  jurisdiction  to  decide  whether  he  is  an 
adverse  claimant,  or  not,  and  to  proceed  accordingly.  For  in- 
stance, if  the  party  asserts  a  lien  by  attachment,  which,  upon 
his  own  claim,  is  avoidable  under  the  provisions  of  the  bank- 
rupt law,  he  is  not  an  adverse  claimant.  In  order  to  make  him 
such,  he  must  claim  a  right  to  hold  the  property  under  a  bona 
fide  colorable  claim  of  title.  For  instance,  a  surety  on  a  bail 
bond  of  the  bankrupt,  with  whom  the  bankrupt  had  deposited 
money  to  protect  his  interests,  and  who  held  it  for  that  pur- 
pose, is  an  adverse  claimant.21  So,  too,  a  party  claiming  prop- 
erty alleged  to  be  fraudulently  conveyed,  where  the  question 
whether  the  conveyance  was  fraudulent  or  not  was  a  matter 
of  fact,  and  could  not  necessarily  be  settled  by  an  inspection 
of  the  pleadings  themselves,  is  an  adverse  claimant.22  Under 
this  principle,  an  assignee  in  a  deed  of  general  assignment  is 
not  an  adverse  claimant,  and  can  be  proceeded  against  sum- 
marily, for  that  is  an  act  of  bankruptcy  of  itself,  and  is  a  mat- 
ter of  law,  which  the  assignee  must  know,  and  therefore  for 
which  he  cannot  assert  a  colorable  adverse  claim.23 

20  Mueller  v.  Nugent,  184  U.  S.  1,  22  Sup.  Ct.  269,  46  L.  Ed.  405; 
In  re  Breslauer  (D.  C.)  121  Fed.  910. 

»i  Jaquith  v.  Rowley,  188  U.  S.  620,  23  Sup.  Ct.  369,  47  L.  Ed.  620. 

22  In  re  Hartman  (D.  C.)  121  Fed.  940. 

2«  BRYAN  v  BERNHEIMER,  181  U.  S.  188,  21  Sup.  Ct  557,  45  L. 
Ed.  814 ;   In  re  Thompson  (D.  C.)  122  Fed.  174. 


13G  DISTRICT    COURT — BANKRUPTCY.  (Cll. 


SAME— TRUSTEE'S  RIGHTS  AGAINST  PARTIES  CLAIMING 
ADVERSELY  UNDER  ALLEGED  VOID  TRANS- 
FERS, ETC. 

62.  The  right  to  avoid  transfers  or  illegal  preferences  under 
the  bankruptcy  act  is  vested  in  the  trustee  alone. 
Creditors  of  the  bankrupt  cannot  proceed  in  their  own 
names,  even  though  they  allege  that  they  have  applied 
to  the  trustee  and  that  he  has  refused  to  proceed,  for 
the  bankruptcy  act  makes  him  the  sole  judge  of  the 
propriety  of  such  procedure.24 
The  usual  remedy  resorted  to  for  the  purpose  of  avoiding 
transfers  forbidden  by  the  act  is  a  bill  in  equity  in 
the  name  of  the  trustee. 2  5 

Under  section  23  of  the  original  act,  it  is  settled  by  repeat- 
ed decisions  in  the  United  States  Supreme  Court  that  the 
federal  courts  did  not  have  jurisdiction  over  such  suits,  unless 
they  would  have  had  jurisdiction  of  the  controversy  in  case 
bankruptcy  proceedings  had  not  been  instituted,  and  the  con- 
troversy had  been  between  the  bankrupt  and  adverse  claim- 
ants.26 

The  effect  of  these  decisions  was  to  take  away  from  the  fed- 
eral courts  all  but  their  mere  administrative  jurisdiction,  and  to 
relegate  to  the  state  courts  the  most  important  class  of  con- 
troversies which  arise  under  the  bankrupt  act.  The  amendment 
of  February  5,  1903,  was  carefully  drawn  to  restore  this  neces- 
sary jurisdiction  to  the  federal  courts.  It  accomplished  this 
by  making  section  23b  read  as  follows,  the  added  portion  be- 

24  GLENNY  v.  LANGDON,  98  U.  S.  20,  25  L.  Ed.  43;  Trimble 
v.  Woodbead.  102  U.  S.  647,  26  L.  Ed.  290;   Bankr.  Act,  §  70e. 

25  Cox  v.  Wall  (D.  C.)  99  Fed.  546;  Wall  v.  Cox,  101  Fed.  403, 
41  C.  C.  A.  408;  Id.,  181  U.  S.  244,  21  Sup.  Ct.  642,  45  L.  Ed.  845 
(altbougb  tbe  decision  of  tbe  lower  court  was  reversed  in  tbe  Su- 
preme Court  on  tbe  question  of  jurisdiction  of  tbe  federal  courts,  it 
was  not  reversed  on  tbe  question  of  tbe  remedy);  Allen  v.  Massey, 
17  Wall.  351,  21  L.  Ed.  542;  Harmanson  v.  Bain,  Fed.  Cas.  No.  6,072. 

2  6  Bardes  v.  Bank,  178  U.  S.  524,  20  Sup.  Ct.  1000,  44  L.  Ed.  1175, 
Jaquitb  v.  Rowley,  188  TJ.  S.  620,  23  Sup.  Ct.  369,  47  L.  Ed.  620. 


§  62)  trustee's  DUTIES  OF  ADMINISTRATION.  1o( 

ing  in  italics:  "Suits  by  the  trustee  shall  only  be  brought  or 
prosecuted  in  the  courts  where  the  bankrupt  whose  estate  is  be- 
ing administered  by  such  trustee  might  have  brought  or  prose- 
cuted them  if  proceedings  in  bankruptcy  had  not  been  insti- 
tuted, unless  by  consent  of  the  proposed  defendant,  except  suits 
for  the  recovery  of  property  under  section  60,  subdivision  'b,' 
and  section  67,  subdivision  'e.'  " 

It  also  added  to  section  60,  par.  "b"  (the  section  avoiding  ille- 
gal preferences),  to  section  67e  (the  section  avoiding  convey- 
ances made  to  hinder,  delay,  and  defraud),  and  to  section  70e 
(the  section  authorizing  the  trustee  to  avoid  illegal  transfers) 
the  following  words :  "For  the  purpose  of  such  recovery  any 
court  of  bankruptcy,  as  hereinbefore  defined,  and  any  state 
court  which  would  have  had  jurisdiction  if  bankruptcy  had  not 
intervened,  shall  have  concurrent  jurisdiction." 

Under  section  1,  subd.  8,  courts  of  bankruptcy  are  denned 
as  including  the  district  courts  of  the  United  States,  and  the 
territories,  the  supreme  court  of  the  District  of  Columbia,  and 
the  United  States  courts  of  the  Indian  Territory  and  of  Alaska. 
Hence,  under  this  amendment,  these  federal  courts  would 
have  concurrent  jurisdiction  with  the  state  courts  over  such 
controversies. 

It  will  be  observed  that  the  United  States  circuit  court  is 
not  mentioned  among  the  courts  of  bankruptcy.  It  would  not 
have  jurisdiction,  therefore,  unless  under  the  general  laws  de- 
fining the  jurisdiction  of  the  circuit  courts,  or  under  the  provi- 
sions of  section  23  of  the  act.  If,  however,  the  citizenship  of 
the  parties  and  the  other  requisites  of  jurisdiction  as  to  amount 
involved,  etc.,  are  proper,  the  circuit  court  would  have  juris- 
diction of  such  controversies  on  that  ground.  So,  also,  it 
would  have  jurisdiction  if  a  federal  question — that  is,  a  question 
arising  under  the  constitution  and  laws  of  the  United  States — 
was  involved.  In  order  to  have  jurisdiction  on  the  ground  of 
a  federal  question,  however,  the  fact  that  the  case  arises  under 
the  Constitution  and  laws  of  the  United  States  must  appear 
from  the  plaintiff's  own  statement  of  his  case ;    and  it  must 


luS  DISTRICT    COURT — BANKRUPTCY.  (Ch.  7 

not  merely  appear  that  such  a  question  is  involved,  but  that 
the  plaintiff  bases  his  right  on  the  question.27 

In  any  suit  by  a  trustee  to  set  aside  an  illegal  preference  on 
the  ground  that  it  violated  the  bankrupt  act,  this  would  also 
necessarily  appear,  and  it  would  therefore  seem  that  on  that 
ground  the  circuit  court  also  would  have  jurisdiction. 

In  a  suit  by  the  trustee  to  set  aside  an  alleged  illegal  trans- 
fer, the  bankrupt  is  not  a  necessary  party,  as  he  no  longer 
has  any  interest  in  the  result.28 

SAME— THE     CIRCUMSTANCES    AVOIDING    AN    ALLEGED 
ILLEGAL  TRANSFER. 

63.    The    circumstances    which    will    avoid    an    alleged    illegal 
transfer  are 

(1)  that  the  bankrupt  must  be  insolvent,  and 

(2)  that  the  party  benefited  must  have  had  reasonable  cause 

to   believe   that  the   bankrupt  was   insolvent,  and  that 
he  intended  to  violate  the  provisions  of  the  act. 

Under  the  provisions  of  sections  60  and  67,  a  suit  to  avoid 
an  illegal  preference  is  not  sustainable  unless  the  bankrupt  is 
insolvent,  and  unless  the  person  receiving  it  or  to  be  benefited 
thereby,  or  his  agent  acting  therein,  shall  have  had  reasonable 
cause  to  believe  that  it  was  intended  thereby  to  give  a  pref- 
erence, or,  in  the  case  of  liens,  that  the  party  had  reasonable 
cause  to  believe  that  the  defendant  was  insolvent  and  in  con- 
templation of  bankruptcy,  or  that  the  lien  was  sought  and  per- 
mitted in  fraud  of  the  provisions  of  the  act.  This  applies 
simply  to  these  two  methods  of  creating  an  illegal  preference. 
As  to  suits  to  set  aside  a  conveyance  with  intent  to  hinder, 
delay,  or  defraud  creditors,  based  on  statutes  similar  to  the 
statute  of  13  Elizabeth,  they  are  void,  except  as  to  pur- 
chasers in  good  faith,  and  for  present,  fair  consideration. 

27  Boston  &  Montana  Consol.  Copper  &  Silver  Min.  Co.  v.  Pur- 
chasing Co.,  188  U.  S.  032,  23  Sup.  Ct.  434,  47  L.  Ed.  626. 
2  8  Buffington  v.  Harvey,  05  U.  S.  99,  24  L.  Ed.  381. 


§  64)  trustee's  duties  of  administration.  139 

In  reference  to  preferences,  therefore,  two  requisites  must 
concur  before  the  trustee  can  hope  to  recover:  First,  the 
bankrupt  must  be  insolvent ;  and,  second,  the  transferee  must 
have  had  reasonable  cause  to  believe  he  intended  to  give 
a  preference,  which  involves  reasonable  cause  to  believe  that 
he  was  insolvent,  or,  as  to  liens,  that  he  was  insolvent  and  in 
contemplation  of  bankruptcy,  or  that  such  lien  was  sought 
and  permitted  in  fraud  of  the  provisions  of  the  act.  Substantial- 
ly, therefore,  the  bankrupt  must,  in  the  first  place,  be  insol- 
vent; and,  in  the  second  place,  the  party  benefited  must  have 
reasonable  cause  to  believe  that  he  was  insolvent,  and  that  he 
intended  to  violate  the  provisions  of  the  act 

SAME— SAME— INSOLVENCY. 

64.  A  party  is  deemed  insolvent,  under  the  provisions  of  the 
first  section  of  the  act,  whenever  the  aggregate  of  his 
property,  exclusive  of  any  property  which  he  may  have 
conveyed,  transferred,  concealed,  or  removed,  or  per- 
mitted to  be  concealed  or  removed,  with  intent  to  de- 
fraud, hinder,  or  delay  his  creditors,  shall  not,  at  a 
fair  valuation,  be  sufficient  in  amount  to  pay  his  debts. 

This  marks  a  radical  and  far-reaching  distinction  between 
the  present  act  and  the  act  of  18G7.  Under  the  latter  act  a 
party  was  insolvent  when  he  was  unable  to  meet  his  debts 
as  they  accrued.  Under  the  present  act,  if  his  property  is  suffi- 
cient to  pay  his  debts,  he  is  solvent,  even  though  he  may  go 
to  protest  and  fail  to  provide  for  their  payment.  This  is  true 
even  as  to  the  bankrupt  himself,  in  passing  upon  the  question 
whether  he  has  committed  those  acts  of  bankruptcy  which  in- 
volve insolvency  as  an  essential  element.29 

This  meaning  of  insolvency  is  so  different  from  its  usual 
meaning  in  the  law  that  even  the  appointment  of  a  receiver  on 
the  ground  of  insolvency  under  a  state  statute,  where  the 
word  has  its  old  meaning,  does  not  prove  insolvency  under  the 

29  in  re  Rogers'  Milling  Co.  (D.  C.)  102  Fed.  687. 


140  DISTRICT   COURT — BANKRUPTCY.  (Ch.  7 

bankrupt  act  with  its  present  meaning.  If  a  fair  estimate 
shows  an  excess  of  assets  over  liabilities,  the  bankrupt  is  not 
insolvent.30 

Nor  does  any  presumption  of  the  existence  of  insolvency 
arise  from  the  making  of  an  adjudication  in  bankruptcy,  nor 
from  the  want  of  ready  money  to  pay  debts.31 

And  in  determining  the  value  of  property,  it  is  estimated 
on  the  theory  of  a  fair  appraisement,  and  not  necessarily  on 
the  price  that  a  purchaser  would  give  who  tried  to  take  advan- 
tage of  the  bankrupt's  situation.32 

A  partnership  is  solvent  if  the  individual  and  firm  assets 
together  exceed  the  liabilities.33 

But  even  if  the  bankrupt  is  insolvent,  the  transaction  will 
still  hold,  unless  the  party  benefited  had  reasonable  cause  to 
believe  that  he  was  insolvent,  and  that  he  intended  to  violate 
the  act.  Here,  too,  the  decisions  under  the  former  act  must 
be  used  with  great  caution.  Where  insolvency  consists  in  an 
inability  to  meet  obligations  as  they  mature,  many  circum- 
stances of  suspicion  might  be  brought  home  to  the  party 
benefited  that  would  be  entitled  to  but  little  weight  under  the 
meaning  of  the  word  in  the  present  statute.  Even  under  the 
former  act  mere  suspicion  that  the  bankrupt  was  in  trouble,  or 
knowledge  that  he  was  slow  in  paying  his  debts,  was  not  suffi- 
cient to  bring  such  knowledge  home  to  the  party  benefited. 
Under  the  present  act  a  much  stronger  train  of  circumstances 
would  be  necessary,  for,  as  has  been  seen  above,  a  party  em- 
barrassed might  even  go  to  protest,  and  still  be  solvent.  An 
interesting  discussion  of  the  meaning  of  insolvency  under  the 
present  act,  as  compared  with  the  old  act,  is  contained  in  the  case 
of  In  re  Eggert,34  though  that  decision  apparently  gives  more 


so  In  re  Doscher  (D.  C.)  120  Fed.  408. 
3i  In  re  Cbappell  (D.  C.)  113  Fed.  545. 

32  Duncan  v.  Landis,  106  Fed.  839,  45  C.  C.  A.  666. 

33  Davis  v.  Stevens  (D.  C.)  104  Fed.  235. 

s*  IN  RE  EGGERT  (D.  C.)  98  Fed.  843,  Id.,  102  Fed.  735,  43  G 
C.  A.  1. 


§  66)       trustee's  interest  in  rights  of  action.  141 

weight  to  the  cases  under  the  old  act  than  they  ought  to  have, 
and  does  not  sufficiently  emphasize  the  difference  between  the 
two  acts.  So,  too,  the  knowledge  by  the  party  benefited  of  the 
existence  of  certain  indebtedness  on  the  part  of  the  bank- 
rupt is  not  of  itself  sufficient,  for  it  must  be  remembered  that 
the  interests  of  the  commercial  world  demand  freedom  of 
alienation  just  as  much  as  they  demand  the  enforcement  of  the 
provisions  of  the  bankrupt  act. 

THE  TRUSTEE'S  INTEREST  IX  INSURANCE  POLICIES. 

65.  The  trustee  is  entitled  to  any  insurance  policy  payable  to 
the  bankrupt  which  has  a  cash  surrender  or  an  actual 
value,  unless  the  bankrupt  chooses  to  redeem  such 
policy. 

Under  section  70  the  trustee  is  entitled  to  any  insurance 
policy  in  the  name  of  the  bankrupt  which  has  a  cash  surrender 
value  and  is  payable  to  the  bankrupt,  unless  the  bankrupt 
chooses  to  redeem  the  policy.  It  has  been  held,  however,  that 
the  trustee  is  also  entitled  to  any  insurance  policy  payablevto 
the  bankrupt  that  has  an  actual  value,  even  though  it  has 
no  cash  surrender  value,  because  such  a  policy  is  property, 
and  passes  under  the  previous  clauses  of  the  same  section. 


35 


THE  TRUSTEE'S  INTEREST  IN  RIGHTS  OF  ACTION. 

66.  The  trustee  is  entitled  to  all  rights  of  action  arising  upon 
contracts,  or  from  the  unlawful  taking  or  detention 
of,  or  injury  to,  the  bankrupt's   property. 

The  seventieth  section  of  the  act  provides  that  the  trustee 
shall  be  entitled  to  all  rights  of  action  arising  upon  contracts, 
or  from  the  unlawful  taking  or  detention  of,  or  injury  to,  the 

35  in  re  Welling,  113  Fed.  189,  51  C.  C.  A.  151;  In  re  Holden.  114 
Fed.  650,  52  C.  C.  A.  346. 


U2  DISTRICT    COURT — BANKRUPTCY.  (Cll.  7 

bankrupt's  property.  Under  this  provision  it  is  clear  that  the 
trustee  does  not  become  entitled  to  the  bankrupt's  right  of 
action  for  torts  to  the  person — for  instance,  to  rights  of  action 
for  slander  or  malicious  prosecution.36 


THE  TRUSTEE'S  POWER  OF  SALE. 

67.  The  trustee  has  the  power  to  hold  a  sale  after  due  notice 
to  all  parties  in  interest,  which,  however,  is  subject  to 
affirmation  by  the  court.  The  sale  may  be  a  public  or 
private  one,  according  to  circumstances. 

This  power  is  necessarily  implied  in  the  right  given  by  the 
forty-seventh  section  of  the  act  to  collect  and  reduce  to 
money  the  property  of  the  estates  for  which  they  are  trus- 
tees, under  the  direction  of  the  court.  Under  the  fifty-eighth 
section,  creditors  are  entitled  to  notice  of  all  proposed  sales 
of  property;  and,  after  the  property  is  sold,  the  court  has  a 
general  supervision  over  the  question  whether  to  confirm  the 
sale  or  not,  and  exercises  it  under  the  ordinary  principles  gov- 
erning judicial  sales,  but  will  not  set  aside  a  sale  merely  be- 
cause a  somewhat  better  price  could  be  obtained,  though  it 
will  set  it  aside  if  improperly  conducted,  even  though  the  pur- 
chaser was  not  himself  guilty  of  any  impropriety.37 

The  eighteenth  bankruptcy  order  38  requires  sales  to  be  at 
public  auction,  unless  otherwise  ordered,  but  permits  private 
sales  under  certain  circumstances. 

There  is  no  express  provision  in  the  present  act  authorizing 
the  sale  of  property  free  of  incumbrances.  This  was  a  common 
practice  under  the  former  act,  and  the  courts  deduce  the  right 
to  order  such  sales  under  the  present  act  from  the  necessity 
for  prompt  action,  and  the  general  powers  conferred  upon 

ae  Dillard  v.  Collins,  25  Grat.  (Va.)  343;  In  re  Haensell  (D.  C.) 
91  Fed.  3r,r,. 

37  In  re  Ethier  (D.  C.)  118  Fed.  107;  In  re  Belden  (D.  C.)  120  Fed. 
524;   In  re  Shea  (D.  C.)  122  Fed.  TIL'. 

ss  172  U.  S.  659,  18  Sup.  Ct.  vi,  43  L.  Ed.  1191. 


§  68)  trustee's  duties  as  to  distribution.  1 1;! 

them  by  the  act.  A  sale  may  be  ordered  free  from  incum- 
brances even  when  it  is  not  certain  that  there  is  no  equity  of 
redemption.39 

But  there  must  be  at  least  some  probability  that  it  is  to 
the  interest  of  the  general  creditors,  before  such  a  sale  will 
be  ordered.40 

Such  a  sale,  however,  cannot  be  ordered  without  giving  no- 
tice to  all  parties  in  interest,  and  giving  them  a  day  in  court.41 
Under  some  circumstances  a  sale  may  be  ordered  by  the  ref- 
eree.48 


THE  TRUSTEE'S  DUTIES  AS  TO  DISTRIBUTION  OF  THE 

ESTATE. 

68.  It  is  the  trustee's  duty  to  distribute  the  estate  in  accord- 
ance with,  and  observance  of,  certain  priorities  pre- 
scribed by  law. 

In  the  distribution,  certain  priorities  are  prescribed  by  the 
sixty-fourth  section  of  the  act.  The  trustee  must,  of  course, 
observe  them.  He  must  pay  all  taxes  due  to  the  United 
States  or  state,  or  any  municipal  subdivision  thereof,  before 
he  can  pay  any  dividend. 

Debts  Due  the  United  States. 

It  is  an  interesting  question,  under  the  present  act,  whether 
debts  due  to  the  United  States  which  are  not  taxes  are  a  prior 
claim.  Under  the  act  of  1867  there  was  an  express  provision 
giving  them  priority.43    The  fact  that  this  provision  is  omitted 

s •  In  re  Union  Trust  Co.,  122  Fed.  937,  59  C.  C.  A.  461. 

40  In  re  Pittelkow  (D.  C.)  92  Fed.  901;  Southern  Loan  &  Trust 
Co.  v.  Benbow  (D.  C.)  96  Fed.  514;  In  re  Shaeffer  (D.  C.)  105  Fed. 
352. 

4i  Factors'  &  Traders'  Ins.  Co.  v.  Murphy,  111  TJ.  S.  738,  4  Sup. 
Ct.  679,  28  L.  Ed.  582;   In  re  Pittelkow  (D.  C.)  92  Fed.  901. 

42  In  re  Sanborn  (D.  C.)  96  Fed.  551;  In  re  Waterloo  Organ  Co. 
(D.  C.)  118  Fed.  904. 

43  Lewis  v.  U.  S.,  92  U.  S.  618,  23  L.  Ed.  513. 


144  DISTRICT    COUKT — BANKRUPTCY.  (Ch.  7 

in  the  present  act,  and  only  taxes  due  the  United  States  men- 
tioned as  prior,  might  be  taken  as  some  evidence  of  an  in- 
tent on  the  part  of  Congress  to  abolish  that  priority ;  but,  on 
the  other  hand,  the  bankrupt  law  contains  no  section  to  the 
effect  that  its  provisions  are  intended  to  be  exclusive,  and 
contains  no  clause  of  repeal  of  any  other  acts.  Hence  it 
would  seem  that  section  3466  of  the  Revised  Statutes,*  which 
gives  priority  to  the  United  States  in  the  event  of  winding  up 
an  insolvent  estate,  is  not  affected  by  the  bankrupt  act,  but, 
on  the  contrary,  that  the  priority  so  given  would  be,  in  the 
language  of  the  fifth  subdivision,  "debts  owing  to  any  person 
who  by  the  laws  of  the  state  or  the  United  States  is  entitled 
to  priority."  The  ordinary  principles  of  construction,  which 
lean  against  excluding  the  sovereign  from  the  benefits  of  stat- 
utes, would  be  applicable,  and  tend  to  strengthen  the  claim  of 
the  government  to  priority.  Hence,  even  if  the  government 
did  not  prove  its  claim  at  all,  no  laches  could  be  imputed  to  it, 
and  it  would  be  the  duty  of  the  trustee,  if  he  knew  of  the  claim, 
to  pay  it.  This  priority  of  the  government,  however,  is  not  in 
the  nature  of  a  lien,  and,  if  the  trustee  distributed  the  estate 
without  knowledge  of  a  governmental  claim  against  the  bank- 
rupt, he  could  not  be  held  accountable  for  doing  so. 

Under  the  first  paragraph  of  the  sixty-fourth  section,  the 
trustee  must  pay  taxes  even  upon  the  property  of  the  bank- 
rupt exempt  as  a  homestead.44 

And  there  is  no  obligation  upon  the  governmental  organ- 
ization to  whom  the  taxes  are  due  to  prove  its  claim  for 
taxes,  but  it  is  the  duty  of  the  trustee  to  pay  them  without 
such  proof.45 

Priority  of  Wages. 

Another  important  priority  given  by  the  sixty-fourth  section 
is  wages  due  to  workmen,  clerks,  or  servants,  which  have  been 
earned   within   three   months   before   the  date   of  the   com- 

*  2  TJ.  S.  Cornp.  St.  1901,  p.  2314. 
**  In  re  Tilden  (D.  C.)  91  Fed.  500. 
4  5  In  re  Harvey  (D.  C.)  122  Fed.  745. 


§  69)  trustee's  duties  as  to  exemptions.  145 

mencement  of  the  proceedings,  not  to  exceed  $300  to  each 
claimant.  This  provision  is  intended  to  cover  the  subject  of 
priority  of  wages.  The  clerk  or  workman  cannot  claim  pri- 
ority for  three  months  under  this  provision,  and  then  for  a 
greater  time  where  the  state  law  gives  him  a  greater  pro- 
tection, even  under  the  fifth  subdivision,  giving  priority  to 
debts  owing  to  any  person  who  by  the  laws  of  the  states  or 
the  United  States  is  entitled  to  priority.  This  last  subdivision 
is  not  intended  to  extend  the  preceding  subdivision  relating  to 
wages.46 

This  provision  is  intended  to  cover  wages  which  have  ac- 
crued in  three  months,  whether  they  are  actually  due  and 
payable  or  not.4' 

THE    TRUSTEE'S    DUTIES   AS    TO    THE   BANKRUPT'S    EX- 
EMPTIONS. 

69.  It  is  the  trustee's  duty  to  set  apart  all  exemptions  in  fa- 
vor of  the  bankrupt  allowed  by  the  state  or  federal 
law.  It  is  then  within  the  province  of  the  bankruptcy 
court  to   allow    or  disallow  said  exemptions. 

The  bankrupt  is  entitled,  under  the  sixth  section  of  the 
act,  to  the  exemptions  allowed  by  the  state  laws ;  and,  under 
the  forty-seventh  section,  it  is  the  trustee's  duty  to  set  the  ex- 
emption apart  and  report  his  action  to  the  court.  And  under 
the  eleventh  subdivision  of  the  second  section  of  the  act,  the 
court  has  power  to  determine  all  claims  of  bankrupts  to  their 
exemptions.  Under  this  provision  the  court  has  power  to 
consider  the  bankrupt's  claim  to  exemption  up  to  the  point 
when  it  is  finally  set  aside  to  him.  Prior  to  that  it  has  the 
right  to  say  whether  the  bankrupt  is  entitled  to  certain  prop- 
erty as  exempt,  or  not.  For  instance,  where  the  state  law 
expressly  provided  that  the  bankrupt  should  not  claim  prop- 

46  In  re  Shaw  (D.  C.)  109  Fed.  782;  In  re  Slomka,  122  Fed.  630, 
58  C.  C.  A.  322. 

4  7  in  re  Gladding  (D.  C.)  120  Fed.  709. 
Hughes  Fed.Juk. — 10 


146  DISTRICT    COURT — BANKRUPTCY.  (Cll.  7 

erty  as  exempt  against  the  purchase  price,  and  the  bankrupt 
set  up  a  claim  to  such  property,  and  the  creditors  came  into 
the  bankrupt  court  to  resist  the  claim,  the  court  has  the 
power  to  pass  upon  it.48  In  fact,  the  bankrupt  court  has  ex- 
clusive jurisdiction  to  determine  the  claim  of  the  bankrupt  to 
an  exemption.49  But  when  the  exemption  is  once  set  aside  to 
the  bankrupt,  it  is  no  longer  a  part  of  the  estate  under  the 
jurisdiction  of  the  court,  and  then  the  court  has  no  jurisdic- 
tion in  controversies  concerning  it.10  It  cannot  consider  dis- 
putes in  relation  to  it  between  the  bankrupt  and  creditors  who 
claim  to  hold  obligations  waiving  it.B1 

4»  In  re  Boyd  (D.  C.)  120  Fed.  999. 
4»  McGahan  v.  Anderson,  113  Fed.  115,  51  C.  C.  A.  92. 
eo  in  re  Black  (D.  G.)  104  Fed.  289. 

bi  LOCKWOOD  r.  BANK,  190  U.  S.  294,  23  Sup.  Ct.  751,  47  L. 
Ed.  1061. 


§  70)  DISTRICT    COURT — BANKRUPTCY.  147 

CHAPTER  VIE. 
DISTRICT  COURT  (Continued)— BANKRUPTCY  (Continued). 

70.  The  Discharge — Application  for. 

71.  Same — Method  of  Opposing. 

72.  Same — Burden  of  Proof. 

73.  Grounds  of  Opposition  to  Discharge. 

74.  The  Debts  Not  Affected  by  a  Discharge. 

75.  Revocation  of  a  Discharge. 

THE  DISCHARGE— APPLICATION  FOR. 

70.  The  discharge  is  the  release  of  the  bankrupt  from  all  of 
his  indebtedness  which  the  bankruptcy  can  affect. 
Application  therefor  may  be  made  within  certain  lim- 
its as  to  time;  and,  upon  notice  to  all  parties  in  in- 
terest, and  after  a  hearing  granted  the  applicant  and 
those  who  oppose  the  discharge,  the  same  is  granted  or 
refused  by  the  court. 

The  procedure  relating  to  a  discharge  is  regulated  by  sec- 
tion 14  of  the  act,  as  amended  by  the  act  of  February  5,  1903. 
The  application  cannot  be  made  until  one  month  after  the 
adjudication,  and  must  be  made  within  twelve  months  after  it, 
though  the  judge  may,  under  certain  circumstances,  allow  six 
additional  months. 

Under  section  58  the  creditors  are  entitled  to  ten  days'  no- 
tice, by  mail,  of  any  hearing  upon  the  application  for  the  dis- 
charge. This  notice  must  be  by  mail,  and  cannot  be  by  publi- 
cation— certainly  not  unless  it  is  shown  that  the  address  of 
the  creditor  cannot  be  obtained.1 

Corporations  as  well  as  individuals  may  ask  for  a  dis- 
charge.2 

Where  a  partnership  has  filed  a  petition  in  bankruptcy,  the 

i  In  re  Dvorak  (D.  C.)  107  Fed.  76. 

2  In  re  Marshall  Paper  Co.,  102  Fed.  872,  43  C.  C.  A.  38. 


MS  DISTRICT    COURT — BANKRUPTCY.  (Ch.  8 

individual  partners  may  apply  separately  for  a  discharge,  and 
do  not  have  to  join  in  such  application.8 

A  bankrupt  who  applied  for  a  discharge  under  the  act  of 
1867  and  was  refused  is  not  thereby  precluded  from  applying 
under  the  act  of  1898.  The  two  acts  are  entirely  dissimilar, 
and  adjudications  under  the  first  would  not  be  res  judicata  un- 
der the  second.  And  this  second  application  may  be  for  a 
discharge  from  debts  existing  under  the  old  act  as  well.4 

The  better  opinion  is  that  a  bankrupt  can  apply  for  a  dis- 
charge but  once.  He  is  then  given  his  day  in  court  and 
full  opportunity  to  show  his  right  to  a  discharge,  and  he 
cannot  expect  to  relitigate  the  question.8 

The  parties  entitled  to  oppose  a  discharge  are,  in  the  lan- 
guage of  the  act,  "parties  in  interest."  This  includes  a  creditor 
whose  name  is  in  the  bankrupt's  list  of  creditors,  although  he 
has  not  proved  his  debt.6 

A  creditor  who  has  appeared  in  a  bankruptcy  proceeding 
cannot  oppose  the  discharge  on  the  ground  that  the  petition 
for  bankruptcy  was  not  filed  in  the  right  district.  By  appear- 
ing in  the  proceeding  he  waives  any  objections  which  merely 
affect  the  question  of  the  personal  jurisdiction  of  the  court  over 
the  bankrupt.7 

SAME— METHOD   OF  OPPOSING. 

71.  The  method  of  opposing  a  discharge  is  by  specifications 
filed  by  parties  in  interest,  setting  out  the  grounds  of 
opposition  with  reasonable  particularity,  and  giving 
such  facts  as  'will  enable  the  bankrupt  to  defend  him- 
self. This  raises  the  issues  of  law  and  fact,  the  state- 
ments  of   the   specifications  being  presumed  to  be   de- 

«  In  re  Meyers  (D.  C.)  97  Fed.  757. 

*  In  re  Herrman  (D.  C.)  102  Fed.  753;  Id.,  106  Fed.  987,  46  C.  C. 
A.  77. 

e  In  re  Fiegenbaum,  121  Fed.  69,  57  C.  C.  A.  409.  Contra:  In  re 
Claff  (D.  C.)  Ill  Fed.  506. 

«  In  re  Frice  (D.  C.)  96  Fed.  611. 

t  In  re  Clisdell  (D.  C.)  101  Fed.  246. 


§  71)  THE    DISCHARGE.  149 

nied  by  the  bankrupt,  and  no  further  step  is  required 
•f  the  bankrupt.  He  can  raise  legal  questions  by  mo- 
tion to  dismiss. 

The  act  requires  the  judge  to  hear  the  application  for  a 
discharge,  and  such  proofs  and  pleas  as  may  be  made  in  op- 
position thereto  by  parties  in  interest.  Under  this  language 
the  creditor  must  raise  the  question  by  formal  specifications 
in  opposition.  These  specifications  must  set  out  the  grounds 
on  which  he  opposes  the  discharge  with  reasonable  particu- 
larity, giving  such  necessary  facts  in  connection  with  the 
general  charge  as  will  enable  the  bankrupt  to  defend  himself. 
The  creditor  cannot  merely  come  in  and  follow  the  language 
of  the  statute  defining  the  grounds  of  opposition  to  a  bank- 
rupt's discharge.8 

But  even  if  the  specifications  are  vague  and  indefinite,  the 
bankrupt  cannot  go  to  trial  on  them  in  the  lower  court,  and 
raise  thL  objection  to  them  for  the  first  time  in  the  appellate 
court.0 

The  court  may,  in  its  discretion,  allow  the  specifications  to 
be  amended  so  as  to  make  them  more  definite,  but  it  is  not 
apt  to  exercise  this  discretion  in  this  manner  where  the  cred- 
itors have  been  guilty  of  laches.18 

"Where  the  creditor's  specifications  are  filed,  it  is  not  neces- 
sary for  the  bankrupt  to  join  any  formal  issue  thereon.  As 
far  as  the  specifications  raise  questions. of  fact,  they  are  pre- 
sumed to  be  denied  by  the  bankrupt,  and  his  failure  to  file  a 
formal  paper  denying  them  is  not  an  admission  of  their  valid- 
ity, and  would  not  authorize  any  default  decree  against  him. 
So,  too,  as  to  questions  of  law,  he  need  not  file  any  paper  in 

«  In  re  Goodale  (D.  C.)  109  Fed.  783;  In  re  Peck  (D.  C.)  120  Fed. 
972;   In  re  Parish  (D.  O.)  122  Fed.  553. 

»  In  re  Osborne,  115  Fed.  1,  52  C.  C.  A.  595. 

io  Id.;  In  re  Glass  (D.  C.)  119  Fed.  509;  In  re  Carley,  117  Fed. 
130,  55  C.  C.  A.  146;  Kentucky  Nat.  Bank  t.  Carley,  121  Fed.  822, 
58  C.  C.  A.  158. 


150  DISTRICT    COURT BANKRUPTCY.  (Ch.  8 

the  nature  of  a  demurrer.     He  can  raise  the  questions  before 
the  court  on  motion  to  dismiss.11 


SAME— BURDEN  OF  PROOF. 

72.  The  burden  is  upon  creditors  opposing  a  discharge  to 
prove  the  facts  necessary  to  defeat  it  by  a  preponder- 
ance of  evidence  clear  and  convincing. 

There  is  some  conflict  of  decisions  as  to  the  quantity  of  evi- 
dence necessary  to  prove  the  ground  alleged  as  opposition  to 
the  discharge.  There  can  be  no  question  that  the  burden  of 
proof  in  the  first  instance  is  upon  the  creditor  opposing  it.  It 
has  been  held  in  some  cases  that  a  fair  preponderance  of  evi- 
dence is  all  that  is  necessary  in  order  to  sustain  this  burden 
of  proof.12  On  the  other  hand,  it  has  been  held,  on  much 
stronger  reasoning,  that,  although  the  proof  need  not  be 
such  as  to  leave  the  matter  beyond  a  reasonable  doubt,  it  must 
be  more  than  a  mere  preponderance,  and  must  be  clear 
and  convincing.18 

The  grounds  on  which  a  discharge  can  be  opposed  are, 
in  the  main,  grounds  connected  with  the  commission  of  a  crim- 
inal offense,  or  the  commission  of  some  fraud.  While  the  pro- 
ceeding to  show  that  a  criminal  offense  has  been  committed 
as  a  means  of  defeating  the  discharge  is  not  a  criminal  pro- 
ceeding, it  at  least  has  the  effect  of  fastening  the  commis- 
sion of  a  crime  upon  the  defendant.  Hence  it  is  not  unrea- 
sonable to  expect  proof  beyond  that  required  in  ordinary  civil 
suits.  The  release  of  a  debtor  from  a  load  of  debt,  and  his 
restoration  to  the  producing  class  of  the  community,  are 
the  fundamental  reasons  for  the  enactment  of  the  bankrupt 

ii  In  re  Logan  (D.  C.)  102  Fed.  876;  In  re  Crist  (D.  C.)  116  Fed. 
1007. 

12  in  re  Leslie  (D.  C.)  119  Fed.  406;  In  re  Dauchy  (D.  C.)  122  Fed. 
688. 

13  In  re  Corn  (D.  C.)  106  Fed.  143;  In  re  Howden  (D.  C.)  Ill  Fed. 
T23;    In  re  Greenberg  (D.  C.)  114  Fed.  773. 


§  73)  GROUNDS   OP   OPPOSITION   TO   DISCHARGE.  151 

law,  and  therefore  the  presumptions  ought  to  be  in  favor  of  his 
obtaining  a  discharge.  Hence,  while  it  might  be  too  heavy  a 
burden  on  the  creditor  to  require  the  amount  of  proof  neces- 
sary in  criminal  procedure,  it  certainly  is  not  putting  too  much 
upon  him  to  require  a  degree  of  proof  equal  to  that  required 
for  the  proof  of  fraud  in  ordinary  civil  proceedings,  and  hence 
the  requirement  that  the  proof  must  be  clear  and  convincing 
would  seem  to  be  based  upon  sound  reasons. 
Policy  as  to  Granting  Discharge. 

The  policy  of  the  bankrupt  court  is  in  favor  of  granting  a 
discharge.  The  act  contemplates  a  speedy  discharge,  and  the 
court  will  not  permit  creditors  to  unreasonably  delay  it.  Nor 
will  the  court  go  out  of  its  way  to  find  grounds  for  refusing 
it.14 

Collateral  Weight  of  Discharge. 

A  discharge  is  a  personal  privilege,  like  the  statute  of  lim- 
itations;  and  therefore,  when  a  creditor  is  sued,  he  must 
plead  his  discharge,  or  judgment  will  go  against  him,  just  as  in 
any  other  uncontested  case.15 

When  a  discharge  is  pleaded,  the  court  in  which  it  is  pleaded 
must  assume  that  the  proceedings  upon  it  were  regular,  .and 
that  proper  notices  were  given.  It  cannot  be  attacked  collat- 
erally.16 

GROUNDS  OF  OPPOSITION  TO  DISCHARGE. 

73.    The   general  grounds  of  opposition  to  a  discharge  are,  as 
prescribed  hy  the  statute: 

(1)  Commission  of   offenses  against  the  bankruptcy  act. 

(2)  Intentional  destruction  or  concealment  of,  or  failure  to 

keep,  accounts. 

(3)  Obtaining  property  on  credit  by  false  statement  in  writ- 

ing for  that  purpose. 

14  In  re  Mudd  (D.  C.)  105  Fed.  348;  In  re  Hixon  (D.  C.)  93  Fed.  440. 
is    Fowle  v.  Park  (C.  C.)  48  Fed.  789;    In  re  Wesson  (D.  C.)  88 
Fed.  855. 

is  Janecki  Mfg.  Co.  v.  McElwaine  (C.  C.)  107  Fed.  249. 


152  DISTRICT    COURT — BANKRUPTCY.  (Ch.  8 

(4)  Removal,   destruction,  or  concealment  of  property,   with 

intent    to    hinder,    delay,    or    defraud    creditors,    within 
four  months  previous  to  filing  of  petition. 

(5)  Prior  discharge   in  hanhruptcy  within  six  yean  in  case 

of  voluntary  proceedings. 

(6)  Refusal  to  obey   lawful   order  of,  or  to  answer  any  ma- 

terial question  approved  by,  the  court  in  the  course  of 
the  bankruptcy  proceedings. 

These  are  set  out  in  section  14  of  the  act,  par.  "b."     As 

originally  enacted,  it  read  as  follows : 

"(b)  The  judge  shall  hear  the  application  for  a  discharge, 
and  such  proofs  and  pleas  as  may  be  made  in  opposition  there- 
to by  parties  in  interest,  at  such  time  as  will  give  parties  in 
interest  a  reasonable  opportunity  to  be  fully  heard,  and  in- 
vestigate the  merits  of  the  application,  and  discharge  the  appli- 
cant unless  he  has  (1)  committed  an  offense  punishable  by  im- 
prisonment, as  herein  provided ;  or,  (2)  with  fraudulent  intent 
to  conceal  his  true  financial  condition  and  in  contemplation  of 
bankruptcy,  destroyed,  concealed  or  failed  to  keep  books  of 
account  or  records  from  which  his  true  condition  might  be  as- 
certained." 

The  act  of  February  5,  1903,  has  radically  changed  this  sec- 
tion, not  only  in  verbiage,  but  by  the  addition  of  several 
grounds  not  contained  in  the  original  act,  so  that  it  now  reads 
as  follows : 

"(b)  The  judge  shall  hear  the  application  for  a  discharge, 
and  such  proofs  and  pleas  as  may  be  made  in  opposition 
thereto  by  parties  in  interest,  at  such  time  as  will  give  parties 
in  interest  a  reasonable  opportunity  to  be  fully  heard,  and  in- 
vestigate the  merits  of  the  application  and  discharge  the  appli- 
cant unless  he  has  (1)  committed  an  offense  punishable  by  im- 
prisonment as  herein  provided ;  or  (2)  with  intent  to  conceal 
his  financial  condition,  destroyed,  concealed  or  failed  to  keep 
books  of  account  or  records  from  which  such  condition  might 
be  ascertained ;  or  (3)  obtained  property  on  credit  from  any 
person  upon  a  materially  false  statement  in  writing  made  to 


§  73)  GROUNDS   OF   OPPOSITION   TO   DISCHARGE.  153 

such  person  for  the  purpose  of  obtaining  such  property  on 
credit;  or  (4)  at  any  time  subsequent  to  the  first  day  of  the 
four  months  immediately  preceding  the  filing  of  the  petition 
transferred,  removed,  destroyed,  or  concealed,  or  permitted 
to  be  removed,  destroyed,  or  concealed  any  of  his  property 
with  intent  to  hinder,  delay,  or  defraud  his  creditors;  or  (5) 
in  voluntary  proceedings  been  granted  a  discharge  in  bank- 
ruptcy within  six  years;  or  (6)  in  the  course  of  the  proceed- 
ings in  bankruptcy  refused  to  obey  any  lawful  order  of  or  to 
answer  any  material  question  approved  by  the  court." 

In  considering  the  grounds  of  opposition,  it  is  important  to 
reinember  the  distinction  between  the  right  to  a  discharge  and 
its  effect  when  granted.  The  right  to  it  is  governed  by  the 
above-quoted  section,  and  the  only  grounds  of  opposition  are 
these  therein  contained.  The  fact  that  a  discharge  does  not 
affect  certain  debts  is  not  any  reason  why  the  holders  of  such 
debtj  should  oppose  it,  as  they  are  unaffected  by  it.  For  in- 
stance, the  omission  of  creditors  from  the  list,  unless  done  in- 
tentionally, so  as  to  make  the  swearing  to  the  list  a  false  oath, 
is  no  ground  for  refusing  a  discharge,  because  a  discharge 
does  not  affect  the  right  of  such  creditor  to  subsequently  sue 
the  bankrupt.17  Nor  is  the  existence  of  unprovable  debts  a 
ground  for  opposing  the  granting  of  a  discharge,  as  such  dis- 
charge, when  granted,  is  no  defense  against  them.18 

Nor  can  the  question  of  the  effect  of  a  discharge  be  con- 
sidered on  an  application  for  it.  Such  questions  will  properlv 
come  up  when  the  bankrupt  pleads  it  in  defense  to  a  suit 
brought  against  him,  but  are  not  proper  issues  on  an  appli- 
cation to  the  court  to  obtain  it.1* 

"  In  re  Monroe  (D.  C.)  114  Fed.  398;  In  re  Blalock  (D.  C.)  118 
Fed.  679. 

is  In  re  Tinker  (D.  C.)  99  Fed.  79;  Tinker  v.  Colwell,  193  U.  S. 
473,  24  Sup.  Ct  505,  48  L.  Ed.  754;  In  re  Black  (D.  C.)_97  Fed.  493; 
In  re  Carmichael  (D.  C.)  96  Fed.  594. 

i»  In  re  Marshall  Paper  Co.,  102  Fed.  872,  43  C.  C.  A.  38;  In  re 
McCarty  (D.  C.)  Ill  Fed.  151. 


154  DISTRICT    COURT — BANKRUPTCY.  (Cll.  8 

Commission  of  Offense  as  Ground  of  Opposition. 

The  first  ground  specified  on  which  a  discharge  can  be  op- 
posed is  that  the  bankrupt  "has  committed  an  offense  punish- 
able by  imprisonment  as  herein  provided."  The  offenses 
against  the  bankrupt  act  are  set  out  in  section  29  of  the  act. 
In  so  far  as  they  relate  to  the  bankrupt  himself,  the  first  two 
named  in  paragraph  "b"  are  practically  the  only  ones  which 
can  be  urged  against  a  discharge.  The  first  of  these  is,  hav- 
ing knowingly  and  fraudulently  concealed  while  a  bankrupt,  or, 
after  his  discharge,  from  his  trustee,  any  of  the  property  be- 
longing to  his  estate  in  bankruptcy.  Mere  proof  of  the  ex- 
istence of  property  not  reported  by  the  bankrupt  is  not  suffi- 
cient to  defeat  his  discharge  on  this  ground.  It  must  be  proved 
to  have  been  knowingly  and  fraudulently  concealed.  It  is  not 
sufficient  to  prove  simply  former  possession  of  the  property  by 
the  bankrupt,  but  present  ownership  as  well  must  be  shown.2* 

The  offense  of  fraudulent  concealment  may  be  proved  from 
the  bankrupt's  statements  on  his  examination,  and  those 
statements  can  be  used  against  him  for  that  purpose,  as  the 
proceeding  is  not  a  criminal  proceeding.21 

The  second  offense  relating  to  the  bankrupt  is  having  know- 
ingly and  fraudulently  made  a  false  oath  or  account  in  or  in 
relation  to  any  proceeding  in  bankruptcy.  This  offense  is 
committed  when  the  bankrupt  purposely  omits  property  from 
his  sworn  schedules.22 

It  is  not  committed,  however,  by  the  omission  of  prop- 
erty from  a  mere  mistake.28 


20  In  re  Idzall  (D.  C.)  96  Fed.  314;  In  re  Patterson  (D.  G.)  121 
Fed.  921. 

2i  In  re  Leslie  (D.  C.)  119  Fed.  406. 

22  Osborne  v.  Perkins,  112  Fed.  127,  50  C.  C.  A.  158;  In  re  Becker 
CD.  C.)  106  Fed.  54;  Id.,  112  Fed.  1020,  50  C.  O.  A.  666;  In  re  Sem- 
mel  (D.  C.)  118  Fed.  487. 

2  8  In  re  Morrow  (D.  C.)  97  Fed.  574;  In  re  Freund  (D.  C.)  98 
Fed.  81. 


§  73)  GROUNDS   OF   OPPOSITION    TO    DISCHARGE.  155 

The  failure  to  schedule  property  fraudulently  transferred 
is  a  violation  of  the  act  in  this  respect.24 

The  omission  of  property  from  the  schedules  must  be  inten- 
tional and  fraudulent,  in  order  to  constitute  this  offense.25 

A  false  oath  must  be  one  material  to  the  bankruptcy  pro- 
ceeding.26 

Here,  too,  the  offense  may  be  proved,  as  far  as  the  ques- 
tion of  a  discharge  is  concerned,  by  the  bankrupt's  statements 
in  his  examination,  and  they  may  be  used  against  him  for 
that  purpose.27 

Failure  to  Keep  Accounts,  etc. 

The  second  ground  of  opposition  to  the  bankrupt's  dis- 
charge is  the  fraudulent  failure  to  keep  books  of  account,  when 
in  contemplation  of  bankruptcy.  The  amendment  of  February 
5,  1903,  has  materially  changed  the  language  of  this  part  of 
section  14,  so  that  now  in  order  to  defeat  a  discharge  on  this 
ground,  it  is  only  necessary  to  prove  that  the  bankrupt,  with 
intent  to  conceal  his  financial  condition,  destroyed,  concealed, 
or  failed  to  keep  books  of  account  or  records  from  which  such 
condition  might  be  ascertained.  The  omission  of  the  word 
"fraudulent"  from  the  first  draft  of  the  act  does  not  materially 
change  it,  for,  even  under  this  amendment,  any  such  intent 
as  that  defined  would  be  fraudulent.  But  the  omission  of  the 
words  "in  contemplation  of  bankruptcy"  does  very  materially 
change  the  original  act,  and  defeats, a  discharge  for  im- 
proper concealment  or  destruction  of  books,  even  though 
not  in  contemplation  of  bankruptcy.  This  change  was  prob- 
ably made  in  consequence  of  the  fact  that  the  courts  had  not 
entirely  agreed  as  to  the  meaning  of  this  phrase.     For  in- 

24  In  re  Skinner  (D.  C.)  97  Fed.  190;  In  re  Gammon  (D.  C.)  109 
Fed.  312. 

25  in  re  Eaton  (D.  C.)  110  Fed.  731. 

2  6  Bauman  v.  Feist,  107  Fed.  83,  46  C.  C.  A.  157;  In  re  Blalock 
(D.  C.)  118  Fed.  679. 

27  In  re  Dow's  Estate  (D.  C.)  105  Fed.  889;  In  re  Gaylord,  112 
Fed.  668,  50  C.  C.  A.  415. 


156  DISTRICT    COURT — BANKRUPTCY.  (Cll.  8 

stance,  in  the  case  of  In  re  Shertzer  *•  it  was  held  that  contem- 
plation of  bankruptcy  was  by  no  means  the  equivalent  of  con- 
templation of  insolvency,  thereby  implying  that  even  proof  Gf 
insolvency  at  the  time  would  not  be  sufficient.  On  the  other 
hand,  it  had  been  held  that  a  bankrupt  who  failed  to  keep 
such  books  when  he  must  have  known  that  he  was  hopelessly 
insolvent  must  be  presumed  to  have  done  it  fraudulently  and 
in  contemplation  of  bankruptcy.29 

The  amendment  adopts  this  latter  construction  of  the  act, 
and  renders  the  task  of  the  opposing  creditor,  to  that  extent, 
easier.  The  mere  failure  to  keep  books  under  the  original  act, 
or  the  keeping  of  insufficient  and  inaccurate  books,  was  not  of 
itself  sufficient  to  defeat  a  discharge  on  this  ground — certainly 
in  case  of  a  business  where  the  keeping  of  an  elaborate  set  of 
books  was  not  necessary.  The  failure  must  have  been  with 
fraudulent  intent.30 

The  actual  destruction  of  books  would  defeat  an  application 
under  this  clause.31 

The  delinquency  which  will  defeat  a  discharge  on  this  ground 
must  be  a  personal  delinquency  of  the  bankrupt.  For  instance, 
in  the  case  of  a  partnership,  the  failure  of  one  partner  to  keep 
proper  books  would  not  defeat  the  application  of  an  innocent 
partner  for  his  discharge.32 

Where  a  husband  conducted  the  business  of  his  wife,  she 
leaving  everything  to  him  and  being  innocent  herself,  his  fail- 
ure to  keep  proper  books  would  not  defeat  her  application.83 

Other  Grounds. 

The  new  grounds  specified  in  the  amendment  of  February 
5,  1903,  hardly  require  discussion. 

2  8  (D.  C.)  99  Fed.  706. 

29  In  re  Kenyon  (D.  C.)  112  Fed.  658;  In  re  Feldstein,  115  Fed. 
259,  53  C.  C.  A.  479. 

so  in  re  Idzall  (D.  C.)  96  Fed.  314;  In  re  Corn  (D.  C.)  106  Fed.  143; 
In  re  Lafleche  (D.  C.)  109  Fed.  307. 

si  In  re  Conley  (D.  C.)  120  Fed.  42. 

32  In  re  Schultz  (D.  C.)  109  Fed.  264. 

3  3  in  re  Hyrnan  (D.  C.)  97  Fed.  195. 


74)        THE    DEBTS   NOT   AFFECTED   BY    A   DISCHARGE.  157 


THE  DEBTS  NOT  AFFECTED  BY  A  DISCHARGE. 

74.  The  debts  not  affected  by  a  discbarge  in  bankruptcy  are 
liabilities  for  obtaining  property  by  false  pretenses  or 
false  representations,  or  for  wiHful  or  malicious  in- 
juries to  the  person  or  property  of  another,  or  for  ali- 
mony due  or  to  become  due,  or  for  maintenance  or 
support  of  wife  or  child,  or  for  seduction  of  an  un- 
married female,  or  for  criminal  conversation. 

Section  17  of  the  act  prescribes  the  effect  of  a  discharge  when 
granted.  The  second  subdivision  in  the  original  act  reads: 
"are  judgments  in  actions  for  frauds,  or  obtaining  property  by- 
false  pretenses  or  false  representations,  or  for  wilful  and  mali- 
cious injuries  to  the  person  or  property  of  another." 

This  subdivision  has  been  changed  by  the  act  of  February 
5,  1903,  to  read  as  follows :  "are  liabilities  for  obtaining  prop- 
erty by  false  pretenses  or  false  representations,  or  for  wilful 
and  malicious  injuries  to  the  person  or  property  of  another, 
o^  for  alimony  due  or  to  become  due,  or  for  maintenance  or 
support  of  wife  or  child,  or  for  seduction  of  an  unmarried  fe- 
male, or  for  criminal  conversation." 

This  amendment  was  evidently  intended  to  meet  the  course 
of  decisions  on  the  original  act.  It  seemed  to  contemplate  that 
the  only  other  liabilities  which  were  unaffected  by  the  dis- 
charge were  those  which  had  been  reduced  to  judgment.  Un- 
der its  original  form,  the  courts  have  held  that,  if  it  did  not 
cover  debts  not  reduced  to  judgment,  they  would  give  the 
creditor  time  to  reduce  his  clair:  to  judgment,  so  that  the  dis- 
charge could  not  affect  them.34 

There  had  been  some  conflict  of  decisions  on  the  question 
of  what  constituted  a  willful  or  malicious  injury  to  the  person. 
In  the  case  of  In  re  Tinker,35  it  had  been  questioned  whether 

a*  In  re  Cole  (D.  C.)  106  Fed.  837;  In  re  Wollock  (D.  C.)  120  Fed. 
516.  As  to  false  representations,  see  FORSYTH  v.  VEHMEYER, 
177  U.  S.  177,  20  Sup.  Ct.  623,  44  L.  Ed.  723. 

35  (D.  C.)  99  Fed.  79.     But  the  question  of  the  effect  of  this  same 


158  DISTRICT    COURT — BANKRUPTCY.  (Ch.  8 

this  phrase  would  cover  damages  in  an  action  of  crim.  con. 
as  that  would  hardly  be  said  to  be  a  willful  or  malicious  injury 
to  the  person  of  the  husband.  On  the  other  hand,  in  the  case 
of  In  re  Freche,86  it  had  been  held  that  damages  recovered  for 
the  seduction  of  a  daughter  did  come  within  this  language,  and 
in  the  case  of  In  re  Maples  87  it  was  held  that  a  judgment  by 
an  unmarried  woman  for  her  own  seduction,  under  a  Montana 
statute  giving  such  a  right  of  action,  was  a  willful  and  mali- 
cious injury  to  her  person  or  property.  These  questions  are  set 
at  rest  by  the  amendment. 

However,  if  there  is  a  liability  for  an  alleged  fraudulent  trans- 
action, and  the  creditor,  waiving  the  fraud,  closes  it  by  taking 
promissory  notes  of  the  debtor,  and  then  gets  judgment  on  the 
notes,  that  is  not  a  judgment  in  an  action  for  fraud,  in  the 
sense  of  the  original  act.38 

Another  class  of  debts  not  affected  by  a  discharge  are  the 
unscheduled  debts,  unless  the  creditor  had  notice  or  actual 
knowledge  of  the  bankruptcy  proceedings. 

The  last  class  mentioned  is  debts  created  by  his  fraud,  em- 
bezzlement, misappropriation,  or  defalcation  while  acting  as  an 
officer  or  in  any  fiduciary  capacity.  The  fraud  contemplated 
in  this  subdivision  and  the  previous  one  means  actual,  positive 
fraud,  involving  moral  turpitude,  not  mere  constructive  fraud 
or  fraud  in  law.39 

It  is  well  settled  that  the  debts  contemplated  by  this  subdi- 
vision are  those  arising  on  actual,  technical  trusts,  and  were 
not  intended  to  cover  trusts  arising  from  mere  relations  of 

discharge  was  decided  in  Tinker  v.  Colwell,  193  TJ.  S.  473,  24  Sup. 
Ct.  505,  48  L.  Ed.  754,  to  the  effect  that  such  cause  of  action  was  not 
barred  by  a  discharge. 

se  (D.  C.)  109  Fed.  620. 

3  7  (D.  C.)  105  Fed.  919. 

3  8  Hargadine-McKittrick  Dry  Goods  Co.  v.  Hudson,  122  Fed.  232, 
58  C.  C.  A.  596. 

8»  Ames  v.  Moir,  138  U.  S.  306,  11  Sup.  Ct.  311,  34  L.  Ed.  951; 
Western  Union  Cold  Storage  Co.  v.  Hurd  (C.  C.)  116  Fed.  442. 


§  75)  REVOCATION   OF   A    DISCHARGE.  159 

confidence,  even  though  that  may  be  the  colloquial  sense  of 
the  term.40 

For  this  reason,  debts  due  by  a  commission  merchant  or 
broker  to  customers  for  property  of  theirs  which  he  has  sold 
are  not  debts  contracted  in  a  fiduciary  capacity,  in  the  sense  of 
the  statute.41 

REVOCATION  OF  A  DISCHARGE. 

75.  Under  section  15  of  the  act,  the  judge  may,  upon  the  ap- 
plication of  parties  in  interest  who  have  not  heen 
gnilty  of  undue  laches,  filed  at  any  time  within  one 
year  after  a  discharge  shall  have  been  granted,  revoke 
it  upon  a  trial,  if  it  shall  be  made  to  appear  that  it 
was  obtained  through  the  fraud  of  the  bankrupt,  and 
that  the  knowledge  of  the  fraud  has  come  to  the  pe- 
titioners since  the  granting  of  the  discharge,  and  that 
the  actual  facts   did  not   warrant  the   discharge. 

This  evidently  contemplates  a  showing  on  the  proceeding 
for  a  revocation  about  as  strong  as  that  necessary  to  secure  a 
new  trial  at  common  law  on  the  ground  of  after-discovered 
evidence.  The  ignorance  of  creditors  alone  is  not  enough,  if 
the  facts  on  which  they  base  their  motion  to  revoke  were  known 
to  the  trustee,  as  he  represents  them  to  this  extent.42 

A  fraud  long  prior  to  the  adjudication  in  bankruptcy  is  not 
such  a  one  as  is  contemplated  by  this  section.43 

Even  a  creditor  who  has  not  proved  his  claim  is  sufficiently 
a  party  in  interest  to  move  for  a  revocation,  and  the  court  itself, 
if  it  thinks  that  there  are  sufficient  reasons  for  it,  may  revoke 
the  discharge  within  the  year.44 

40  Bracken  v.  Milner  (C.  C.)  104  Fed.  522;  In  re  Butts  (D.  C.)  120 
Fed.  966. 

4i  Upshur  v.  Briscoe,  138  U.  S.  363,  11  Sup.  Ct.  313,  34  L.  Ed.  931; 
In  re  Basch  (D.  C.)  97  Fed.  761;  Knott  v.  Putnam  (D.  0.)  107  Fed. 
907. 

42  in  re  Hansen  (D.  C.)  107  Fed.  252. 

*8  in  re  Hoover  (D.  C.)  105  Fed.  354. 

44  In  re  Bimberg  (D.  C.)  121  Fed.  942. 


160  DISTRICT    COURT — BANKRUPTCY.  (Ch.  8 

But  if  the  bankrupt  has  fraudulently  concealed  or  failed  to 
list  his  property,  and  this  fact  is  found  out  by  the  creditors  after 
the  granting  of  the  discharge,  and  could  not  have  been  found 
out  before,  then  the  discharge  may  be  revoked." 

48    in  re  Meyers  (D.  O.)  100  Fed.  775. 


§  76)       DISTRICT   COURT — MISCELLANEOUS  JURISDICTION.         161 


CHAPTER  IX. 

THE   DISTRICT   COURT   (Continued)— MISCELLANEOUS 
JURISDICTION. 

76.  Claims  against  the  United  States— Proper  Forum. 

77.  Same — The  Subjects  of  Jurisdiction. 

78.  Same — The  Procedure. 

79.  Same — The  Appeal. 

80.  Same — The  Proper  Appellate  Court 

81.  Suits  to  Abate  Unlawful  Inclosures  of  Public  Lands. 

82.  Suits  under  the  Interstate  Commerce  Act. 

83.  Condemnation  Proceedings. 
84  Writ  of  Habeas  Corpus. 

85.  Same — Federal  Jurisdiction. 

86.  Same — When  Jurisdiction  Exercised. 

87.  Same— The  Particular  Federal  Courts— Courts  Having  Jurisdic- 

tion to  Issue. 

88.  Same — Procedure  on  Habeas  Corpus. 

CLAIMS   AGAINST   THE  UNITED  STATES— PROPER 
FORUM. 

76.  All  suable  claims  against  the  United  States  may  be 
prosecuted  in  the  court  of  claims,  which  is  located  in 
Washington.  The  district  and  circuit  courts  have 
concurrent  jurisdiction  with  this  court  over  such 
claims  in  certain  classes  of  cases  fixed  by  law;  the 
jurisdiction  of  the  district  court  being  limited  to  cases 
involving  not  over  one  thousand  dollars,  and  that  of 
the  circuit  court  to  those  over  that  amount,  and  up  to 
and  not  exceeding  ten  thousand  dollars. 

Until  the  act  of  March  3,  1887,  known  as  the  "Tucker 
Act,"  1  the  only  court  which  had  jurisdiction  of  claims  against 
the  United  States  was  the  court  of  claims.  This  act,  however, 
gave  to  the  district  and  circuit  courts  concurrent  jurisdiction 

1 24  Stat.  505,  c.  359  [1  U.  S.  Comp.  St.  1901,  p.  752]. 
Hughes  Fed.Jtjb. — 11 


162       DISTRICT  COURT— MISCELLANEOUS  JURISDICTION.       (Ch.  9 

with  the  court  of  claims,  the  jurisdiction  of  the  district  court 
being  limited  to  cases  involving  not  over  one  thousand  dol- 
lars, and  the  jurisdiction  of  the  circuit  court  to  cases  over  that 
amount  up  to  ten  thousand  dollars.  The  theory  of  this  act  is 
to  give  the  litigant  an  opportunity  of  asserting  his  claim 
against  the  government  in  a  more  convenient  forum  than  the 
court  of  claims,  which  may  be  far  distant  from  him. 


SAME— THE  SUBJECTS  OF  JURISDICTION. 

77.  The  first  section  of  the  act  gives  jurisdiction  on  claims 
founded  on  the  Constitution  or  laws  of  the  United 
States,  or  upon  contracts,  express  or  implied,  in  cases 
not  sounding  in  tort,  except  in  war  claims  and  claims 
adversely  acted  upon  hy  other  government  agencies 
authorized  to  act.  Claims  for  pensions,  also,  are  ex- 
cepted from  the  general  class  of  jurisdiction. 

The  clause  of  this  section  on  which  jurisdiction  is  most  com- 
monly based  is  the  clause  giving  jurisdiction  for  claims  found- 
ed "upon  any  contract,  expressed  or  implied,  with  the  govern- 
ment of  the  United  States,  or  for  damages,  liquidated  or  un- 
liquidated, in  cases  not  sounding  in  tort,  in  respect  of  which 
claims  the  party  would  be  entitled  to  redress  against  the 
United  States  either  in  a  court  of  law,  equity  or  admiralty  if 
the  United  States  were  suable."  This  includes  only  money 
demands.  It  does  not  give  any  of  the  courts  jurisdiction  in 
equity  to  compel  the  issue  and  delivery  of  a  patent  for  public 
lands,  nor  to  cancel  a  judgment  lien  in  favor  of  the  United 
States  illegally  placed  upon  an  individual's  land  by  a  govern- 
ment officer.2 

Claims  for  a  Tort. 

Claims  for  a  tort  are  expressly  excluded,  and  this  regard- 
less of  the  mere  form  of  pleading  which  the  plaintiff  may 

a  U.  S.  v.  Jones,  131  U.  S.  1,  9  Sup.  Ct  669,  33  L.  Ed.  90 ;   Holmes 
v.  U.  S.  (D.  C)  78  Fed.  513. 


§  77)  CLAIMS   AGAINST   THE    UNITED    STATES.  163 

adopt.  For  instance,  a  suit  by  a  person  who,  while  in  a 
government  building,  is  injured  by  the  fall  of  a  government 
elevator,  cannot  be  sustained,  even  though  allegations  may 
be  made  that  there  was  a  promise  of  the  government  to  carry 
the  plaintiff  safely.3  In  order  to  sustain  the  jurisdiction  on 
the  ground  of  an  implied  contract,  there  must  be  some  ele- 
ment of  contract  in  the  case.  For  instance,  suit  may  be 
brought  for  the  value  of  property  taken  by  the  government 
without  compensation,  where  no  adverse  title  to  the  prop- 
erty is  set  up  by  the  government,  for  there  is  an  implied  con- 
tract with  the  government  to  pay  for  property  so  taken.4 

On  the  other  hand,  when  the  claimant's  right  to  the  prop- 
erty is  denied,  and  the  government  takes  it  under  the  asser- 
tion of  a  right  to  use  it,  then  the  action  is  in  tort,  and  can- 
not be  sustained  on  the  theory  of  an  action  for  use  and  occu- 
pation ;  nor  can  it  be  made  an  action  on  contract  by  merely 
alleging  an  implied  promise  to  pay  under  such  circumstances.5 

This  distinction,  also,  is  well  illustrated  by  the  decisions  in 
reference  to  the  use  of  a  patent  by  the  government.  Where 
the  use  is  with  the  consent  of  the  patentee,  a  promise  to  pay 
is  implied,  and  suit  is  maintainable ;  but,  where  the  use  is 
without  the  consent  of  the  patentee,  a  suit  by  the  patentee  is 
in  tort,  and  not  sustainable,  even  though  he  may  choose  to 
frame  his  pleadings  on  the  theory  of  an  implied  contract.6 
And  a  suit  for  an  injury  equivalent  to  a  taking  of  the  prop- 
erty without  compensation,  where  the  government  does  not 
deny  the  title,  is  within  the  statute.7  A  suit  by  a  contractor 
for  extra  work,  and  damages  caused  by  the  interference  of 
a  government  agent  during  the  work — the  contractor  having 


3  BIGBY  v.  U.  S.,  18S  U.  S.  400,  23  Sup.  Ct.  468,  47  L.  Ed.  519. 
*  U.  S.  v.  Mfg.  Co.,  112  U.  S.  645,  5  Sup.  Ct.  306,  28  L.  Ed.  846. 
e  Hill  v.  U.  S.,  149  U.  S.  593,  13  Sup.  Ct.  1011,  37  L.  Ed.  862. 
e  U.  S.  v.  Palmer.  128  U.  S.  262,  9  Sup.  Ct.  104,  32  L.  Ed.  442; 
ScbilMnger  v.  TT.  S.,  155  U.  S.  163,  15  Sup.  Ct.  85,  39  L.  Ed.  108. 
i  U.  S.  v.  LYNAH,  188  U.  S.  445,  23  Sup.  Ct.  349,  47  L.  Ed.  539. 


1G-1      DISTRICT  COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  D 

a  contract  with  the  government — is  sustainable  as  an  action 
of  contract.8 

In  such  suits  the  government  can  set  up  a  counterclaim, 
and  recover  judgment  on  its  counterclaim.9 

These  suits  must  be  brought  within  six  years  after  the 
right  of  action  accrues,  but  the  additional  time  allowed  by 
the  saving  clause  of  section  1069*  of  the  United  States  Revised 
Statutes  to  persons  beyond  seas  and  under  disability  is  also 
to  be  taken  into  account.10 

Concurrent  Jurisdiction. 

The  jurisdiction  of  the  district  and  circuit  courts  within  the 
pecuniary  limits  above  mentioned  is  coincident  with  the  court 
of  claims,  except  that  under  the  amendment  of  June  27,  1898, 
they  cannot  take  cognizance  of  cases  brought  to  recover  fees, 
salary,  or  compensation  for  official  services  of  officers  of  the 
United  States,  or  their  assigns;  the  idea  probably  being  that 
suits  of  this  sort  can  best  be  asserted  at  the  seat  of  govern- 
ment, where  the  court  of  claims  is  located. 

Claims  by  an  Alien. 

It  is  an  interesting  question  whether  an  alien  can  sue  under 
this  act  in  the  district  or  circuit  court.  In  favor  of  his  right 
to  sue,  it  may  be  said  that  he  certainly  has  the  right  to  sue 
in  the  court  of  claims,  provided  his  own  country  permits  a 
similar  privilege  to  citizens  of  this  country.  This  right  is 
expressly  given  by  section  1068  of  the  Revised  Statutes. 
Then  the  second  section  gives  the  district  or  circuit  courts 
concurrent  jurisdiction  with  the  court  of  claims,  excepting 
only  suits  by  officers.  If  the  act  stopped  here,  the  right  of  an 
alien  to  sue  would  be  clear,  but  the  fifth  section  of  the  act 
requires  the  petition  to  be  filed  "in  the  district  where  the 

s  Bou-e  v.  TJ.  S.  (C.  C.)  42  Fed.  761. 

9  Steele  v.  U.  S.,  113  U.  S.  128,  5  Sup.  Ct.  396,  28  L.  Ed.  952;  TJ. 
S.  v.  Burchard,  125  U.  S.  176,  8  Sup.  Ct.  832,  31  L.  Ed.  662. 

*  U.  S.  Comp.  St.  1901,  p.  740. 

io  U.  S.  v.  Greathouse,  166  TJ.  S.  601,  17  Sup.  Ct.  701,  41  L.  Ed. 
1130. 


§  78)  CLAIMS  AGAINST  THE   UNITED   STATES.  165 

plaintiff  resides."  A  resident  alien,  therefore,  could  un- 
doubtedly sue,  but  whether  an  alien  who  merely  comes  into 
the  United  States  for  a  temporary  purpose  can  sue,  and,  if 
so,  where,  is  a  more  difficult  question.  For  instance,  there 
have  been  some  cases  of  British  captains  towing  in  govern- 
ment light-ships,  and  then  claiming  salvage  upon  them.  Such 
aliens  resided  in  no  district,  and  yet  public  policy  would 
seem  to  require  that  they  should  be  encouraged  to  render 
such  salvage  services.  Such  a  case  was  that  of  The  Viola,11 
but  the  question  of  jurisdiction  was  not  raised  in  the  case. 
In  any  event,  it  would  seem  clear  that  if  such  a  suit  is  brought, 
and  the  United  States  by  an  authorized  officer  appears  and  de- 
fends on  the  merits,  the  court  would  have  jurisdiction  of  the 
case ;  the  question  of  the  mere  district  in  which  to  sue  beingN 
a  question  of  personal  jurisdiction,  and  not  jurisdiction  over/ 
the  subject-matter,  and  therefore  one  which  can  be  waived.  / 

SAME— THE  PROCEDURE. 

78.  A  suit  under  this  act  is  instituted  by  filing  a  petition  in 
the  proper  court  duly  verified,  and  setting  out  the  full 
name  and  residence  of  the  plaintiff,  the  nature  of  his 
claim,  and  a  succinct  statement  of  his  case. 

A  copy  of  this  petition  must  be  served  upon  the  district 
attorney  of  the  United  States  in  the  district  where  the  suit 
is  brought,  and  another  copy  must  be  mailed  by  registered 
letter  to  the  Attorney  General,  and  proof  of  this  fact,  by 
affidavit  of  the  service  and  mailing  of  the  letter,  must  be  filed 
with  the  clerk  of  the  court. 

The  district  attorney  must  then  appear  within  sixty  days 
after  the  service  and  make  defense,  unless  the  court  gives  him 
further  time.  But  no  judgment  by  default  can  be  taken  in 
case  he  does  not.  It  is  still  necessary  to  prove  the  claim 
to  the  satisfaction  of  the  court.     The  trial  is  by  the  court 

ii  (C.  C.)  52  Fed.  172;   55  Fed.  829,  5  C.  C.  A.  283. 


ICG       DISTRICT  COUBT — MISCELLANEOUS  JURISDICTION.       (Ch.  0 

without  a  jury,  and  it  is  its  duty  to  cause  a  written  opinion  to 
be  filed  in  the  case,  setting  forth  the  specific  findings  of  the 
court  on  the  facts,  and  its  conclusions  upon  the  questions  of 
law  involved,  and  to  render  judgment  thereon.  The  court 
must  proceed  according  to  the  nature  of  the  cause  of  action 
asserted,  whether  at  common  law,  in  equity,  or  admiralty. 


SAME— THE  APPEAL. 

79.  On  the  decision  of  the  case,  either  the  plaintiff  or  the 
United  States  may  have  the  right  of  appeal  or  writ  of 
error,  according  to  the  nature  of  the  case. 

The  earlier  cases  were  taken  up  by  appeal,  and  the  provi- 
sions touching  appeals  or  writs  of  error  as  then  existing 
alluded  to  those  in  force  at  the  time  of  the  passage  of  the  act 
in  relation  to  the  court  of  claims.12 

In  the  case  of  Chase  v.  United  States  ls  the  question  was 
presented  whether  the  course  of  review  in  such  case  should 
be  by  appeal,  or  whether  it  could  also  be  by  writ  of  error.  It 
was  decided  that  the  method  of  review  depended  upon  the 
nature  of  the  case.  If  it  was  in  its  nature  a  common-law 
case,  the  review  should  be  by  writ  of  error.  If  it  was  an 
equity  or  admiralty  case,  the  review  should  be  by  appeal. 
This  test,  while  clear  enough  on  principle,  may  frequently 
be  difficult  to  apply  in  practice.  The  only  pleadings  are 
petition  and  answer,  and  there  are  so  many  instances  where 
courts  of  common  law,  courts  of  equity,  and  courts  of  ad- 
miralty have  concurrent  jurisdiction,  that  it  may  often  be 
difficult  to  decide  in  a  given  case  whether  the  case  is  in  its 
nature  a  common-law,  an  equity,  or  an  admiralty  suit.  For 
instance,  suppose  the  case  of  towing  in  a  disabled  light-ship 

12  Strong  v.  U.  S.  (C.  C.)  40  Fed.  183;  U.  S.  v.  Davis,  131  U.  S. 
36,  9  Sup.  Ct.  657,  33  L.  Ed.  93. 

is  155  U.  S.  489,  15  Sup.  Ct.  174,  39  L.  Ed.  284.  See,  also,  U.  S. 
v.  Harsha,  172  U.  S.  5G7,  19  Sup.  Ct.  294,  43  L.  Ed.  556. 


§  80)  CLAIMS   AGAINST   THE    UNITED    STATES.  167 

at  the  request  of  the  crew  aboard;  if  the  vessel  were  not  a 
government  vessel,  the  party  rendering  the  service  could  sue 
on  a  simple  contract  of  employment  at  common  law,  or  could 
sue  in  personam  or  in  rem  in  an  admiralty  court  for  salvage. 
So,  too,  if  the  government  should  charter  some  vessel  and  the 
owner  should  sue  for  the  charter  money,  that  would  be  a  suit 
of  which  either  a  common-law  or  an  admiralty  court  might 
have  jurisdiction.  In  such  cases  either  method  of  review 
would  probably  be  safe. 


SAME— THE  PROPER  APPELLATE  COURT. 

80.   The  proper  appellate  court  in  such  cases,  where  no  special 
question  is  involved,  is  the   circuit  court  of  appeals. 

The  court  to  which  appeals  from  decisions  of  the  district 
or  circuit  courts  should  now  be  taken,  where  no  special  ques- 
tion was  involved,  is  the  circuit  court  of  appeals.  Prior  tov 
the  act  of  March  3,  1891,+  establishing  that  court,  the  Su- 
preme Court  had  held  that  an  appeal  went  from  the  district 
court  to  the  Supreme  Court,  regardless  of  the  amount  in- 
volved, basing  it  upon  the  rule  applicable  to  the  court  of 
claims.14  The  case  of  Chase  v.  United  States,15  though  not 
decided  until  1894,  was  an  appeal  from  a  judgment  rendered 
in  November,  1890.  But  the  fourth  section  of  the  act  of 
March  3,  1891,  establishing  the  circuit,  courts  of  appeals,  ex- 
pressly provides  that  judgments  of  the  district  courts  are 
subject  to  review  only  in  the  Supreme  Court  of  the  United  J 
States,  or  in  the  circuit  courts  of  appeals  as  therein  provided. 
The  fifth  section  gives  the  Supreme  Court  jurisdiction  only 
in  special  cases,  involving  mainly  jurisdictional  or  constitu- 
tional  questions,    and   criminal   appeals.     The   sixth   section 


t  U.  S.  Comp.  St.  1901,  p.  547. 

14  U.  S.  v.  Davis,  131  U.  S.  36,  9  Sup.  Ct.  657,  33  L.  Ed.  93. 

16  156  U.  S.  4S9,  15  Sup.  Ct.  174,  39  L.  Ed.  284. 


108      DISTRICT  COUBT — MISCELLANEOUS  JURISDICTION.      (Cll.  9 

provides  that  the  circuit  court  of  appeals  shall  review  the 
final  decisions  of  the  district  court  in  all  other  cases  than 
those  provided  for  in  the  fifth  section,  unless  otherwise  pro- 
vided by  law.  And  the  fourteenth  section  of  the  act  provides 
that  all  acts  and  parts  of  acts  relating  to  appeals  or  writs  of 
error,  inconsistent  with  the  provisions  contained  in  the  fifth 
and  sixth  sections,  are  repealed.  Under  these  different  pro- 
visions it  is  clear  that  appeals  should  go  to  the  circuit  court 
of  appeals,  unless  there  was  some  special  ground  of  jurisdic- 
tion in  the  Supreme  Court  like  those  mentioned  in  the  fifth 
section.18 

The  recent  case  of  Bigby  v.  United  States  1T  went  to  the 
Supreme  Court  because  there  was  a  certificate  that  the  juris- 
diction of  the  court  was  in  issue. 

When  the  case  goes  up  for  review,  it  goes  up  simply  on 
the  findings  of  the  court  as  to  the  facts  and  law,  which  is  very 
much  like  a  special  verdict.18  These  decisions  probably  mean 
nothing  more  than  that  the  plaintiff  cannot  take  his  whole 
case  up  on  the  evidence.  They  can  hardly  be  presumed  to 
mean  that  the  lower  court,  by  its  opinion  and  findings,  could 
shut  out  the  review  of  rulings  on  legal  questions.  For  in- 
stance, if  the  lower  court  should  exclude  evidence  which  it 
ought  to  have  admitted,  surely  the  plaintiff  could  take  a  bill 
of  exceptions  to  such  exclusion  if  the  case  were  a  common- 
law  case,  or  make  a  formal  tender  of  what  he  expected  to 
prove  in  the  depositions,  and  get  the  ruling  of  the  court 
thereon,  if  the  case  were  in  equity  or  admiralty,  and  have 
the  appellate  court  review  the  action  of  the  lower  court  for 
such  error  of  law. 

«  U.  S.  v.  Harsha,  172  U.  S.  567,  19  Sup.  Ct  294,  43  L.  Ed.  556. 
it  BIGBY  v.  U.  S.,  1S8  U.  S.  400,  23  Sup.  Ct.  468,  47  L.  Ed.  519. 
is  Tj.  S.  v.  Kelly,  89  Fed.  946.  32  C.  C.  A.  441;   Stone  v.  U.  S.,  164 
U.  S.  3S0,  17  Sup.  Ct  71,  41  L.  Ed.  477. 


§  81)  UNLAWFUL  INCLOSURES   OF  PUBLIC  LANDS.  109 

SUITS    TO   ABATE    UNLAWFUL  INCLOSURES    OF   PUBLIC 

LANDS. 

81.  The  district  and  circuit  and  territorial  district  courts  are 
given  certain  statutory  jurisdiction  in  suits  to  abate 
unlawful  inclosures  of  public  lands. 

Under  the  act  of  February  25,  1885,19  inclosures  of  public 
lands  by  parties  not  having  any  color  of  title  thereto  are  for- 
bidden, and  it  is  made  the  duty  of  the  district  attorney  to  in- 
stitute a  civil  suit  in  the  proper  district  or  circuit  court  in  the 
name  of  the  United  States  against  the  offender.  The  act 
also  gives  jurisdiction  to  the  district  or  circuit  or  territorial 
district  court  having  jurisdiction  over  the  locality  where  the 
land  inclosed,  or  any  part  thereof,  is  situated,  to  entertain 
proceedings  in  equity  by  writ  of  injunction  to  restrain  viola- 
tions of  the  act.  It  provides  that  process  may  be  served  on 
any  agent  or  employe  who  has  charge  or  control  of  the  in- 
closure,  and  that  if  the  inclosure  is  found  to  be  unlawful  the 
court  may  enter  an  order  for  its  destruction  in  a  summary 
way.  Under  this  act  equity  has  jurisdiction  to  remove  an 
illegal  inclosure  by  mandatory  injunction,  or  to  prohibit  the 
erection  of  any  other  by  ordinary  injunction.20  The  proceed- 
ing is  a  special  statutory  proceeding  giving  relief  in  a  form 
unknown  to  the  common-law  courts.  It  is  not  available 
against  any  one  who  claims  under  a  bona  fide  claim  or  color 
of  title,  nor  can  the  legal  validity  of  the  defendant's  title  be 
settled  in  such  a  suit.  As  far  as  title  is  concerned,  the  only 
question  which  the  court  can  consider  is  whether  the  defend- 
ant has  a  bona  fide  claim  or  color  of  title.21 

The  act  forbids  any  inclosure  of  government  lands,  even 
though  the  inclosure  is  brought  about  by  fences  erected  on 

i»  23  Stat.  321,  c.  149  [2  U.  S.  Comp.  St.  1901,  p.  1524]. 
20  U.  S.  v.  Ranch  Co.  (C.  C.)  25  Fed.  465;   Id.,  26  Fed.  218. 
2i  U.  S.  v.  Osborn  (C.  C.)  44  Fed.  29;   Cameron  v.  U.  S.,  148  U.  S. 
301,  13  Sup.  Ct.  595,  37  L.  Ed.  459. 


170       DISTRICT   COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  9 

the  claimant's  own  lands.  For  instance,  where  the  claimant 
owned  alternate  sections  and  the  other  sections  were  owned 
by  the  government,  it  was  held  to  be  a  violation  of  the  act 
to  build  fences,  even  on  the  claimant's  own  lands,  a  few  inches 
off  from  the  boundary,  the  result  of  which  was  to  inclose  the 
government's  sections  also;  and  this  though  the  claimant 
supplied  gates  giving  easy  access  to  the  government's  sec- 
tions, and  though  the  claimant's  object  was  a  public  one.22 


SUITS  UNDER  THE  INTERSTATE  COMMERCE  ACT. 

82.  The  ninth  section  of  the  interstate  commerce  act  2  3  pro- 
vides that  any  person  or  persons  claiming  to  he  dam- 
aged hy  any  common  carrier,  subject  to  the  provisions 
of  this  act,  may  either  make  complaint  to  the  commis- 
sion as  thereinafter  provided  for,  or  may  bring  snit  in 
his  or  their  own  behalf  for  the  recovery  of  the  dam- 
ages for  which  such  carrier  may  be  liable,  nnder  the 
provisions  of  that  act,  in  any  district  or  circuit  court 
of  the  United  States  of  competent  jurisdiction;  but 
he  cannot  pursue  two  of  these  remedies,  and  must  elect 
bet-ween  them. 

This  remedy  given  by  the  act  itself  is  limited  to  an  action 
for  damages  by  the  individual.  As  it  is  in  the  nature  of  a 
penalty,  it  must  show  not  only  the  wrong  of  the  carrier,  but 
some  actual  injury  or  damage  to  the  plaintiff.24 

This  remedy  is  cumulative  only,  and  is  not  intended  to  pre- 
vent the  party  injured  from  resorting  to  other  remedies  to 
which  he  would  be  entitled  under  the  general  principles  of 
law.  For  instance,  any  suit  based  upon  the  interstate  com- 
merce act  would  necessarily  involve  a  federal  question,  and 
the  plaintiff  would  have  the  right  to  pursue  the  regular  reme- 

22  Camfield  v.  U.  S.,  167  U.  S.  518,  17  Sup.  Ct.  864,  42  L.  Ed.  260. 

23  24  Stat.  379,  c.  104  [3  U.  S.  Comp.  St.  1901,  p.  3154]. 

2*  Parsons  v.  Railway  Co.,  167  U.  S.  447,  17  Sup.  Ct.  887,  42  L. 
Ed.  231. 


§  83)  CONDEMNATION    PROCEEDINGS.  171 

dies  in  the  federal  courts  provided  for  such  cases,  if  the  other 
requisites  of  jurisdiction  as  to  amount,  etc.,  existed.25 

In  cases  of  urgency  a  carrier  could  resort  to  the  remedy  of 
injunction  to  compel  a  common  carrier  to  interchange  traf- 
fic with  it  to  which  it  would  be  entitled  under  the  provisions 
of  this  act,  and  this  would  be  a  federal  question.28 


CONDEMNATION  PROCEEDINGS. 

83.  Under  the  federal  statutes  several  proceedings  by  condem- 
nation are  authorized,  the  principal  jurisdiction  in 
these  being  in  the  district  court. 

1.  The  Act  of  February  22,  1867. V 

This  act  authorizes  the  Secretary  of  War  to  purchase  such 
real  estate  as  is  necessary  for  national  cemeteries,  or,  in  case 
he  cannot  agree  with  the  owner,  to  enter  upon  and  appro- 
priate any  real  estate  which  in  his  judgment  is  suitable  and 
necessary  for  such  purpose.  In  order  to  secure  the  rights 
of  the  owner,  the  act  provides  that  the  Secretary  of  War,  or 
the  owners,  may  apply  to  the  circuit  or  district  court  within 
any  state  or  district  where  such  real  estate  is  located  for  the 
appointment  of  appraisers ;  and  it  gives  the  court  power,  upon 
such  application,  to  so  frame  its  proceedings  as  to  secure  a 
just  and  equitable  appraisement.  It  further  provides  that  on 
payment  of  the  appraised  value  to  the  owner,  or  into  court 
in  case  he  refuses  to  take  it,  the  title  shall  be  vested  in  the 
United  States,  and  its  jurisdiction  over  such  estate  shall  be 
exclusive. 

2  5  Little  Rock  &  M.  R.  Co.  v.  Railroad  Co.  (C.  C.)  47  Fed.  771;  Id., 
159  U.  S.  698,  16  Sup.  Ct.  189,  40  L.  Ed.  311. 

26  Toledo,  A.  A.  &  N.  M.  R.  Co.  v.  Pennsylvania  Co.  (C.  C.)  54 
Fed.  746,  19  L.  R.  A.  395.  See  the  subsequent  developments  of  this 
vase  (Ex  parte  Lennon)  in  150  U.  S.  393,  14  Sup.  Ct.  123,  37  L.  Ed. 
1120;  64  Fed.  320,  12  C.  C.  A.  134;  and  166  U.  S.  548,  17  Sup.  Ct. 
658,  41  L.  Ed.  1110. 

27  Rev.  St.  4870-4872  [3  U.  S.  Comp.  St.  1901,  p.  3375]. 


172       DISTRICT  COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  9 

2.  The  Act  of  April  24,  iSSS.™ 

This  act  provides  for  the  condemnation  of  such  property 
as  is  necessary  to  maintain,  operate,  or  prosecute  works  for 
the  improvement  of  rivers  or  harbors.  It  provides  that  the 
procedure  shall  be  according  to  the  laws  relating  to  suits  for 
the  condemnation  of  property  of  the  states  wherein  the  pro- 
ceedings may  be  instituted,  and  also  that  they  shall  be  in 
any  court  having  jurisdiction  of  such  proceedings. 

3.  The  Act  of  August  1,  1888.29 

This  is  much  more  general  than  either  of  the  two  preced- 
ing acts,  and  provides  for  condemnation  proceedings,  whether 
to  procure  real  estate  for  the  erection,  of  a  public  building, 
or  for  any  other  public  use.  It  expressly  provides  that  the 
jurisdiction  of  these  proceedings  shall  be  in  the  circuit  or  dis- 
trict wherein  such  real  estate  is  located,  and  that  the  prac- 
tice, pleadings,  forms,  and  modes  of  proceeding  shall  con- 
form as  near  as  may  be  to  the  practice,  pleadings,  forms,  and 
mode  of  proceeding  existing  at  the  time  in  like  causes  in  the 
courts  of  record  of  the  state  within  which  such  circuit  or  dis- 
trict courts  are  held.  This  is  much  the  most  general  act, 
and  the  one  under  which  these  proceedings  are  usually  insti- 
tuted. 

4.  The  Act  of  August  18,  1890.30 

This  provides  for  the  condemnation  by  the  Secretary  of 
War  of  any  land,  or  right  pertaining  thereto,  needed  for  for- 
tifications or  coast  defense.  It  assimilates  the  proceeding  to 
the  state  practice,  and  provides  that  it  shall  be  in  any  court 
having  jurisdiction  of  such  proceedings. 

It  is  well  settled  under  the  decisions  that  the  United  States 
have  jurisdiction  to  condemn  land  for  public  purposes.  In 
fact,  this  is  an  attribute  of  sovereignty,  and  essential  to  the 
proper  exercise  of  its  governmental  powers.     Without  it  the 

28  25  Stat.  94,  c.  194  [3  U.  S.  Comp.  St.  1901,  p.  3525]. 

29  25  Stat.  357,  c.  728  [2  U.  S.  Comp.  St.  1901,  p.  2516]. 
»o  26  Stat.  316,  c.  797  [2  TJ.  S.  Comp.  St.  1901,  p.  2518]. 


§  83)  CONDEMNATION   PROCEEDINGS.  173 

country  might  be  at  the  mercy  of  a  foreign  enemy,  and  the 
internal  administration  of  the  government  at  the  mercy  of  the 
separate  states.31 

The  general  principles  which  regulate  all  condemnation  pro- 
ceedings apply  in  these  matters.  For  instance,  it  is  not  nec- 
essary to  have  a  jury  in  the  sense  of  a  common-law  jury  of 
twelve  men.  The  procedure  may  provide  for  a  simple  jury 
of  inquest  to  pass  upon  the  single  question  of  damages,  and 
need  not  require  unanimity.32 

The  property  specially  benefited  may  be  charged  with  an 
equitable  portion  of  the  benefit,  or  the  court  may  provide 
that  the  special  benefits  to  the  special  tract  may  be  set  off 
against  the  damages.33 

An  act  of  this  sort  need  not  require  payment  to  the  owner 
in  advance  of  entry,  but  may  give  a  right  of  entry  on  the 
land  by  the  payment  of  money  into  court.34 

The  question  as  to  what  constitutes  a  public  use  has  received 
a  very  liberal  construction  from  the  courts.  In  the  case  of  Unit- 
ed States  v.  Gettysburg  Electric  Ry.  Co.,35  it  was  held  that  the 
preservation  of  the  Gettysburg  battlefield  constituted  such  a 
public  use,  and  that  a  statute  authorizing  the  same  was  valid, 
and  hence  a  procedure  against  a  railway  company,  condemning 
part  which  had  already  been  devoted  by  it  to  the  public  use,  was 
upheld.     So,  in  the  case  of  Shoemaker  V.  United  States,36  the 

si  U.  S.  v.  RAILWAY  CO.,  160  U.  S.  668,  16  Sup.  Ct.  427,  40  L. 
Ed.  576;  CHAPPELL  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct.  397,  40  L. 
Ed.  510. 

32  CHAPPELL  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct.  397,  40  L.  Ed. 
510;   Bauman  v.  Ross,  167  U.  S.  548,  17  Sup.  Ct.  966,  42  L.  Ed.  270. 

33  Shoemaker  v.  U.  S.,  147  U.  S.  282,  13  Sup.  Ct.  361,  37  L.  Ed. 
170;  Bauman  v.  Ross,  167  U.  S.  548,  17  Sup.  Ct.  966,  42  L.  Ed.  270. 

34  Great  Falls  Mfg.  Co.  v.  Attorney  General,  124  U.  S.  581,  8  Sup. 
Ct.  631,  31  L.  Ed.  527;  Cherokee  Nation  v.  Railway  Co.,  135  U.  S. 
641,  10  Sup.  Ct.  965,  34  L.  Ed.  295. 

8  5  U.  S.  v.  RAILWAY  CO.,  160  U.  S.  668,  16  Sup.  Ct  427,  40  L. 
Ed.  576. 

se  147  U.  S.  282,  13  Sup.  Ct.  361,  37  L.  Ed.  170. 


174       DISTRICT  COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  9 

validity  of  an  act  authorizing  the  condemnation  of  land  for  a 
public  park  in  Washington  City  was  upheld.  As  the  District  of 
Columbia  is  under  national  control,  this  decision  is  tanta- 
mount to  the  doctrine  that  within  lands  over  which  the  United 
States  has  exclusive  jurisdiction  their  power  of  eminent  do- 
main is  as  extensive  as  that  of  the  states;  but  whether  the 
United  States  would  have  jurisdiction  to  condemn  a  park  in 
territory  not  under  the  exclusive  jurisdiction  of  the  federal  gov- 
ernment, as,  for  instance,  in  a  state,  is  not  settled  by  this 
decision. 

An  act  of  Congress  authorizing  condemnation  proceedings 
may  vest  the  power  of  condemnation  in  the  federal  courts, 
or  may  delegate  it  to  the  state  courts.37 

A  petition  under  these  acts  for  the  right  to  condemn  should 
allege  on  its  face  the  authority  and  the  necessity  for  insti- 
tuting the  proceedings,  and  the  importance  of  the  property  for 
the  public  use  in  contemplation.38 

The  above  provision  as  to  condemnation  proceedings,  as- 
similating them  to  state  procedure  to  the  same  purpose,  does 
not  require  absolute  identity  of  procedure.  They  need  only 
approximate  the  state  procedure.39 


WRIT  OF  HABEAS  CORPUS. 

84.  The  general  principles  of  habeas  corpns  in  the  federal 
courts  are  the  same  as  those  prevailing  under  the  com- 
mon law. 
This  writ  is  not  a  writ  of  error,  and  cannot  be  used  to  cor- 
rect mere  errors  or  irregularities  in  procedure.  It 
raises  only  the  question  of  jurisdiction,  or  power  of 
the  party  to  hold  the  applicant  in  custody. 

«t  U.  S.  v.  Jones,  109  U.  S.  513,  3  Sup.  Ct.  346,  27  L.  Ed.  1015. 

as  in  re  Montgomery  (D.  C.)  48  Fed.  89G;  In  re  Manderson,  51 
Fed.  501,  2  C.  C.  A.  490. 

3  9  CHAPPELL  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct.  397,  40  L.  Ed. 
510. 


§  84)  WRIT   OF   HABEAS   CORPUS.  175 

Nature  of  the  Writ. 

This  is  the  great  writ  which  has  played  such  an  important 
part  in  the  political  and  legal  history  of  the  English  race. 
Its  purpose  is  to  inquire  whether  a  subject  is  illegally  re- 
strained of  his  liberty.  Though  it  affects  criminal  proceed- 
ings, it  is  in  its  nature  a  civil  writ.40  In  order  to  authorize 
the  issue  of  the  writ,  there  must  be  some  actual  restraint  of 
liberty.  A  leading  case  on  this  subject  is  Wales  v.  Whitney.41 
There  a  medical  director  in  the  navy,  who  resided  in  Wash- 
ington, received  a  letter  from  the  Secretary  of  the  Navy  noti- 
fying him  that  he  was  placed  under  arrest,  and  commanding 
him  to  remain  within  the  limits  of  the  city  of  Washington 
pending  proceedings  against  him  by  court-martial.  No  ac- 
tual process,  however,  was  issued,  and  there  was  no  actual 
seizure  of  his  person.  His  right  to  the  writ  was  denied,  as 
there  was  nothing  to  show  such  a  restraint  as  justified  the 
issue  of  the  writ,  for  it  would  have  been  impossible  for  the 
Secretary  of  the  Navy  or  any  one  else,  on  the  return  to  the 
writ,  to  say  that  he  held  custody  of  the  applicant. 

The  fundamental  underlying  principle  as  to  the  issue  of  the 
writ  is  that  it  is  not  a  writ  of  error,  and  cannot  be  used  to 
correct  mere  errors  or  irregularities  in  procedure.  It  raises 
only  the  question  of  jurisdiction,  or  power  of  the  party  to 
hold  the  applicant  in  custody.  The  Supreme  Court  has  had 
occasion  at  almost  every  term  to  reiterate  this  principle,  as 
the  desperate  struggles  of  convicted  criminals  to  postpone 
the  inevitable  as  long  as  possible  result  in  constant  applica- 
tions by  habeas  corpus  to  review  the  action  of  the  court  or 
other  body  by  whom  the  sentence  has  been  imposed.  Some 
ilustrations  of  the  method  in  which  this  general  principle  has 
been  applied  will  better  serve  to  show  its  limits.  The  courts 
will  not  permit  it  to  be  used  as  a  means  of  collaterally  ques- 

40  Cross  v.  Burke,  146  U.  S.  82,  13  Sup.  Ct.  22,  36  L.  Ed.  896. 
4i  WALES  v.  WHITNEY,  114  U.  S.  564,  5  Sup.  Ct.  10o0,  29  L.  Ed. 
277. 


176      DISTRICT  COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  D 

tioning  the  propriety  of  injunction  orders.42  It  cannot  be 
used  for  the  purpose  of  reviewing  a  mere  question  of  regu- 
larity on  proceedings  to  punish  for  contempt.  For  instance, 
where  a  party  had  been  punished  for  creating  a  disorder  in 
the  actual  presence  of  the  court,  or  for  attempting  to  bribe 
a  witness  in  a  jury  room  or  hall  adjoining  the  courtroom, 
the  writ  was  refused,  as  the  court  had  jurisdiction  to  punish 
such  contempts,  and  the  question  whether  the  contempt  had 
actually  been  committed  or  not  was  a  question  of  fact  which 
could  not  be  reviewed  by  such  a  writ.43 

It  cannot  be  used  to  review  proceedings  before  a  United 
States  commissioner  in  the  examination  of  a  poor  debtor  on 
a  judgment  of  a  United  States  court,  or  in  holding  a  party 
arrested  under  foreign  extradition  papers,  if  it  appeared  that 
the  crime  for  which  the  party  was  extradited  was  one  cov- 
ered by  the  extradition  treaty.44 

It  cannot  be  used  as  an  appellate  writ  for  the  purpose  of 
reviewing  proceedings  in  court-martial,  where  the  court-mar- 
tial had  jurisdiction  of  the  crime.45  But  where  the  court  was 
illegally  constituted,  as  where  a  volunteer  was  being  tried  by 
a  court  composed  entirely  of  regulars,  such  defect  became 
jurisdictional,  and  habeas  corpus  would  lie.46 

When,  however,  it  is  said  that  it  will  only  review  questions 
of  the  jurisdiction  of  a  court  or  committing  authority,  it  is 
not  meant  that  it  will  not  lie  at  all  if  the  committing  author- 


*2  in  re  DEBS,  158  U.  S.  564,  15  Sup.  Ct.  900,  39  L.  Ed.  1092 
Ex  parte  Lennon,  166  U.  S.  548,  17  Sup.  Ct  658,  41  L.  Ed.  1110. 

^a  Ex  parte  Terry,  128  U.  S.  289,  9  Sup.   Ct.  77,   32  L.  Ed.  405 
Ex  parte  Savin,  131  U.  S.  267,  9  Sup.  Ct.  699,  33  L.  Ed.  150. 

44  Stevens  v.  Fuller,  136  U.  S.  468,  10  Sup.  Ct.  911,  34  L.  Ed.  461 
Ornelas  v.  Ruiz,  161  U.  S.  502,  16  Sup.  Ct.  689,  40  L.  Ed.  787;  Bry- 
ant v.  U.  S.,  167  U.  S.  104,  17  Sup.  Ct.  744,  42  L.  Ed.  94;  Terlinden 
v.  Ames,  184  U.  S.  270,  22  Sup.  Ct.  484,  46  L.  Ed.  534. 

4  5  WALES  V.  WHITNEY,  114  U.  S.  564,  5  Sup.  Ct.  1050,  29  L.  Ed. 
277;   In  re  Grim  ley,  137  U.  S.  147,  11  Sup.  Ct.  54,  34  L.  Ed.  636. 

4  6  McClaughry  v.  Deming,  186  U.  S.  49,  22  Sup.  Ct.  786,  46  L. 
Ed.  1049. 


§  84)  WRIT   OF   HABEAS   CORPUS.  1T7 

ity  originally  had  jurisdiction.  There  are  many  cases  where 
the  committing  authority  had  jurisdiction  in  the  first  instance 
over  the  general  subject  or  crime,  but  had  no  jurisdiction  to 
enter  the  special  order  complained  of.  In  such  case  habeas 
corpus  would  lie  to  question  the  power  to  make  such  an 
order.  For  instance,  in  the  case  of  Ex  parte  Bain,47  the  court 
permitted  the  amendment  of  an  indictment  which  had  been 
regularlv  found  in  the  first  instance,  and  of  which  the  trial 
court  had  jurisdiction.  The  Supreme  Court  held  on  habeas 
corpus  that  the  effect  of  permitting  the  amendment  of  the 
indictment  made  it  no  indictment  at  all,  as  an  indictment  was 
not  amendable,  and  that  therefore  any  sentence  entered  upon 
such  amended  indictment  was  necessarily  void,  and  habeas 
corpus  would  lie. 

In  the  case  of  Ex  parte  Nielsen  48  the  proceedings  were  regu- 
lar up  to  the  sentence,  but  the  accused  was  sentenced  a  second 
time  for  the  same  offense.  The  court  permitted  a  habeas 
corpus  in  such  case,  as  the  error  did  not  commence  until 
after  sentence. 

Under  state  extradition  proceedings  it  is  usually  competent 
to  raise  the  question  whether  the  party  is  a  fugitive  from  jus- 
tice on  habeas  corpus.  The  distinction  is  well  illustrated  in 
the  cases  of  Cook  v.  Hart49  and  Hyatt  v.  People.50  In  the 
first  case  extradition  papers  had  been  issued,  and  the  accused 
had  been  taken  back  under  them  to  the  state  whence  they 
were  issued,  and  tried.  The  court  held  that  in  such  case  he 
could  set  up,  in  the  state  court  where  he  was  being  tried,  the 
defense  that  he  was  not  a  fugitive  from  justice,  and  would 
not  be  permitted  to  raise  it  by  habeas  corpus  afterwards. 
In  the  second  case,  when  he  was  arrested  he  resisted  the  at- 
tempt to  take  him  back  to  the  state  of  issue,  and  applied  for 
a  habeas  corpus,  showing  that  on  the  date  when  the  crime 

47  EX  PARTE  BAIN,  121  U.  S.  1,  7  Sup.  Ct.  781,  30  L.  Ed.  849. 

48  131  U.  S.  176,  9  Sup.  Ct.  672,  33  L.  Ed.  118. 

49  146  TJ.  S.  183,  13  Sup.  Ct.  40,  36  L.  Ed.  934. 
bo  188  TJ.  S.  691,  23  Sup.  Ct.  456,  47  L.  Ed.  657. 

Hughes  Fed.Juk. — 12 


178      DISTRICT  COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  9 

was  alleged  to  have  been  committed  he  was  not  within  the 
state  where  it  was  alleged  to  have  been  committed.  The 
court  held  that  in  such  case  the  writ  would  lie.  In  fact,  it 
is  a  general  doctrine  that  the  courts  lean  against  considering, 
on  habeas  corpus,  questions  that  could  be  raised  before  the 
committing  or  trying  court,  though,  if  the  judgment  of  such 
court  is  absolutely  void,  the  writ  may  issue.61 

The  writ  will  not  lie  to  attack  the  validity  of  proceedings 
before  a  de  facto  judge." 

SAME— FEDERAL  JURISDICTION. 

85.  The  federal  courts  have  power  to  issue  the  writ  of  habeas 
corpus  in  all  cases  arising  under  the  Constitution  or 
laws  of  the  United  States,  or  in  connection  with  fed- 
eral process. 

This  jurisdiction  is  set  out  in  section  753  of  the  Revised 
Statutes.63  The  federal  courts  have  not  general  common- 
law  jurisdiction  to  inquire  into  any  restraint  of  liberty.  They 
can  only  take  cognizance  on  habeas  corpus  of  questions  aris- 
ing under  the  Constitution  or  laws  of  the  United  States,  or 
in  connection  with  federal  process.  They  cannot  consider 
questions  of  restraint  of  liberty  arising  simply  from  acts  vio- 
lating state  laws  or  state  constitutions.6* 

In  the  case  of  In  re  Burruss  65  the  court  refused  to  con- 
sider the  question  of  disputed  right  to  the  custody  of  a  child, 
not  depending  in  any  way  upon  any  federal  law. 

In  the  case  of  In  re  Duncan58  it  refused  to  consider  the 
question  whether  a  law  was  passed  according  to  the  require- 

Bi  Ex  parte  Nielsen,  131  TJ.  S.  176,  9  Sup.  Ct.  672,  33  L.  Ed.  118; 
Greene  v.  Henkel,  1S3  TJ.  S.  249,  22  Sup.  Ct  218,  46  L.  Ed.  177. 
B2  Ex  parte  Ward,  173  U.  S.  452,  19  Sup.  Ct.  459,  43  L.  Ed.  765. 
5  8  l  u.  S.  Comp.  St.  1901,  p.  592. 

5  4  Storti  v.  Mass,  183  U.  S.  138,  22  Sup.  Ct.  72,  46  L.  Ed.  120. 
0  6  136  TJ.  S.  5S6,  10  Sup.  Ct.  850,  34  L.  Ed.  1500. 
bo  IN  RE  DUNCAN,  139  TJ.  S.  449,  11  Sup.  Ct.  573,  35  L.  Ed.  219. 


§  85)  WRIT   OF   HABEAS   CORPUS.  179 

ments  of  the  state  constitution,  holding  that  such  was  not  a 
federal  question,  and  raised  no  question  relating  to  due  pro- 
cess of  law. 

In  Andrews  v.  Swartz  87  the  failure  of  a  state  to  give  an 
appeal  in  criminal  cases  was  held  not  to  raise  a  federal  ques- 
tion, nor  a  violation  of  the  provisions  relating  to  due  process  of 
law,  and  therefore  not  to  be  questioned  by  habeas  corpus. 

In  Howard  v.  Fleming  58  the  same  principle  was  repeated, 
where  an  attempt  was  made  to  question  whether  an  indict- 
ment charged  a  crime  in  a  state  court,  or  whether  it  was  due 
process  of  law  to  fail  to  instruct  the  jury  on  the  question  of 
the  presumption  of  innocence. 

In  the  case  of  Ex  parte  Kinney  B9  it  was  held  that  the  vio- 
lation of  a  state  statute  forbidding  intermarriage  between 
white  and  colored  persons  raised  no  federal  question. 

On  the  other  hand,  the  court  has  given  a  liberal  construc- 
tion to  the  clause  of  section  753  of  the  Revised  Statutes,  al- 
lowing the  writ  where  the  applicant  is  in  custody  for  an  act 
done  or  committed  in  pursuance  of  a  law  of  the  United  States. 
In  the  great  case  of  In  re  Neagle  60  it  became  necessary  to 
protect  Mr.  Justice  Field  from  violence  while  holding  his 
court  in  California,  and  while  going  to  and  proceeding  there- 
from, and  the  department  of  justice  appointed  a  special  deputy 
to  accompany  him  and  protect  him.  There  was  no  special  fed- 
eral statute  authorizing  the  protection  of  judges  in  such  cases. 
Neagle,  while  accompanying  the  judge,  shot  and  killed  a  man 
by  the  name  of  Terry,  who  was  in  the  act  of  making  a  brutal 
assault  upon  the  judge,  and  who  but  a  short  time  before  had 
taken  part  in  creating  a  disorder  in  the  courtroom.  Neagle 
was  arrested  in  the  state  court  and  charged  with  murder. 
He  was  released  on  habeas  corpus,  the  court  holding  that 
his  custody  was  for  an  act  done  or  committed  in  pursuance 

67  156  U.  S.  272,  15  Sup.  Ct.  3S9,  39  L.  Ed.  422. 

58  191  U.  S.  120,  24  Sup.  Ct.  50,  48  L.  Ed.  121. 

e»  3  Hughes,  9,  Fed.  Cas.  No.  7,825. 

•o  IN  RE  NEAGLE,  135  U.  S.  1,  10  Sup.  Ct.  658,  34  L.  Ed.  55. 


ISO       DISTRICT   COURT — MISCELLANEOUS  JURISDICTION.      (Cll.  9 

of  a  law  of  the  United  States,  and  that  it  could  and  should 
protect  him  on  habeas  corpus. 

In  the  case  of  Boske  v.  Comingore  el  the  court  discharged 
on  habeas  corpus  an  internal  revenue  officer  who  had  been 
arrested  for  refusing  to  produce  records  in  a  state  court,  hold- 
ing that  his  right  to  refuse  to  produce  the  records  depended 
upon  the  federal  law. 

Concurrent  State  Jurisdiction. 

But  while  the  federal  courts  have  jurisdiction  to  issue  the 
writ  in  cases  involving  a  federal  question,  the  state  courts  have 
to  a  certain  extent  a  concurrent  jurisdiction  with  them.  They 
are  just  as  much  as  the  federal  courts  the  guardians  of  rights 
arising  under  the  federal  Constitution,  and  are  just  as  much 
required  to  enforce  such  rights  as  the  supreme  law  of  the 
land.  Hence  a  party  illegally  restrained  for  an  act  involving 
his  rights  under  the  federal  Constitution  can  appeal  on  habeas 
corpus  to  such  state  courts  as  have  jurisdiction.  But  this  is 
subject  to  the  qualification  that  the  state  courts  cannot  issue 
a  habeas  corpus  which  would  interfere  with  the  custody  of 
an  officer  of  the  federal  court,  or  any  officer  of  the  United 
States,  as  such  power  would  inevitably  bring  on  conflict  and 
hamper  the  powers  of  the  federal  government.62 

In  such  case,  if  the  state  court  decides  against  the  federal 
right,  an  appeal  lies  to  the  Supreme  Court  under  section  709 
of  the  Revised  Statutes,  which  is  the  present  form  of  the 
famous  twenty-fifth  secrion  of  the  judiciary  act  of  1789. 

6i  177  U.  S.  459,  20  Sup.  Ct.  701,  44  L-.  Ed.  846. 

62  Robb  v.  Connelly,  111  U.  S.  624,  4  Sup.  Ct.  544,  28  L.  Ed.  542; 
Ex  parte  Royall,  117  U.  S.  241,  6  Sup.  Ct.  734,  29  L.  Ed.  868;  Minne- 
sota v.  Brundage,  180  U.  S.  499,  21  Sup.  Ct.  455,  45  L.  Ed.  640. 


§  86)  WRIT   OF    HABEAS   CORPUS.  181 

SAME— "WHEN  JURISDICTION  EXERCISED. 

80.  While  the  federal  courts  have  jurisdiction,  to  issue  the 
■writ  when  a  federal  question  is  involved,  they  are  dis- 
inclined to  exercise  that  jurisdiction,  and  will  not  is- 
sue it  except  under  special  circumstances  of  urgency. 

This  principle  applies  with  special  force  when  they  are  asked 
to  issue  it  to  affect  proceedings  in  state  courts.  They  have 
more  than  once  said  that  it  is  a  delicate  jurisdiction,  and  that 
all  the  presumptions  are  against  interfering  with  the  ordinary 
administration  of  justice  in  state  courts.  As  a  writ  of  error 
lies  from  the  state  court  of  last  resort  in  case  of  a  decision 
adverse  to  the  federal  right,  they  will  usually  leave  the  appli- 
cant to  his  writ  of  error,  as  it  gives  him  equal  protection. 

In  the  case  of  In  re  Wood  63  they  refused  to  issue  the  writ 
when  the  federal  question  raised  was  that  negroes  were  ex- 
cluded from  a  jury  contrary  to  the  civil  rights  act.  Such 
questions  should  be  raised  in  the  state  court,  and  a  writ  of 
error  taken  in  the  event  of  an  adverse  decision. 

In  State  of  New  York  v.  Eno  64  the  writ  was  refused  to  a 
state  prosecution  for  violation  of  an  offense  which  could  also 
have  been  punished  in  the  federal  court  under  the  national 
banking  act,  the  court  holding  that  the  proper  process  was 
writ  of  error. 

In  Baker  v.  Grice  85  the  allegation  of  the  application  for 
the  writ  was  that  the  Texas  anti-trust  law  violated  the  federal 
Constitution.  There  was  nothing  to  show  that  the  applicant 
would  be  in  any  way  prejudiced  by  leaving  him  to  his  writ  of 
error,  and  he  was  accordingly  left  to  that  remedy. 

In  Minnesota  v.  Brundage  86  a  writ  of  error  was  asked  by 
a  party  arrested  for  a  violation  of  a  state  act  regulating  the 

es  IN  RE  WOOD,  140  U.  S.  278,  11  Sup.  Ct.  738,  35  L.  Ed.  505. 

6  4  155  U.  S.  89,  15  Sup.  Ct.  30,  39  L.  Ed.  80. 

es  169  U.  S.  2S4,  18  Sup.  Ct.  323,  42  L.  Ed.  748. 

6  6  ISO  U.  S.  499,  21  Sup.  Ct.  455,  45  L.  Ed.  640. 


182       DISTRICT   COURT — MISCELLANEOUS  JURISDICTION.      (Ch.  9 

sale  of  dairy  products,  and  the  applicant  was  left  to  his  writ 
of  error  for  the  same  reason. 

On  the  other  hand,  as  instances  of  the  special  circum- 
stances under  which  the  writ  issues,  the  case  of  In  re  Medley  6T 
might  be  mentioned.  There  a  state  law  had  been  passed 
changing  materially  the  method  of  punishment,  which  made 
it  amenable  to  the  objection  of  being  an  ex  post  facto  law. 
The  change  in  the  method  of  punishment,  however,  was  left 
largely  to  the  keeper  of  the  prison,  and  could  not,  in  the  na- 
ture of  things,  be  inflicted  until  after  sentence.  In  such  case 
the  court  held  that  the  writ  would  lie,  as  it  was  too  late  then 
to  assign  errors  to  a  judgment  in  the  state  court. 

The  case  of  In  re  Loney M  involved  an  application  for 
the  writ  by  a  party  who  had  been  arrested  in  a  state  court  for 
perjury  in  a  congressional  contested  election  case,  the  arrest 
being  made  immediately  after  he  left  the  stand.  The  court 
held  that  such  special  circumstance  authorized  the  issue  of 
the  writ. 

The  cases  of  In  re  Neagle  60  and  Boske  v.  Comingore,70 
where  the  writ  was  allowed,  have  been  mentioned  in  another 
connection. 


SAME— THE     PARTICULAR    FEDERAL    COURTS     HAVING 
JURISDICTION  TO  ISSUE. 

87.  Sections  751  and  752  of  the  Revised  Statutes  «  give  this 
power  to  the  Supreme  Court  and  the  circuit  courts  and 
district  courts  and  their  several  justices  or  judges 
within  their  respective  jurisdictions. 

The  district  and  circuit  courts  have  practically  concurrent 
jurisdiction  in  issuing  the  writ,  but  when  it  is  asked  from  a 

«t  134  U.  S.  160,  10  Sup.  Ct.  384,  33  L.  Ed.  835. 

«•  134  U.  S.  372,  10  Sup.  Ct.  584,  33  L.  Ed.  949. 

«»  IN  RE  NEAGLE,  135  U.  S.  1,  10  Sup.  Ct.  658,  35  L.  Ed.  55. 

to  177  U.  S.  459,  20  Sup.  Ct.  701,  44  L.  Ed.  846. 

7i  1  U.  S.  Comp.  St.  1901,  p.  592. 


§  87)  WRIT  OF  HABEAS  CORPUS.  183 

single  judge,  he  naturally  is  the  more  cautious  not  to  interfere 
with  proceedings  in  a  state  court.  He  is  also  more  disin- 
clined than  courts  usually  are  to  pronounce  a  doubtful  act  of 
Congress  unconstitutional.72 

The  Supreme  Court  also  has  original  jurisdiction  to  issue 
the  writ;  in  fact,  as  the  jurisdiction  of  the  Supreme  Court 
extends  over  the  whole  United  States,  a  Supreme  Court  jus- 
tice may  issue  it  anywhere,  though  on  the  return  he  would 
be  apt  to  refer  it  for  final  decision  to  the  full  court.7* 

For  a  long  time  there  was  no  appeal  to  the  Supreme  Court 
in  criminal  matters.  In  such  cases  it  was  cautious  not  to 
permit  the  writ  to  be  used  as  a  writ  of  error  to  the  inferior 
federal  courts.  On  application  to  it  for  the  writ  in  such  cases, 
it  would  only  consider  the  jurisdiction  of  the  court.  In  the 
case  of  Ex  parte  Carll 7i  it  held  that  it  would  only  consider 
the  power  of  the  lower  authority  to  commit  for  the  crime 
charged.  In  In  re  Lancaster 75  it  refused  to  issue  the  writ 
to  the  circuit  court  when  the  writ  attempted  to  raise  a  ques- 
tion on  an  indictment  which  could  have  been  raised  in  the  cir- 
cuit court  by  motion  to  quash.  In  In  re  Swan,76  which  was 
a  contempt  proceeding  for  interfering  with  the  custody  of 
a  federal  receiver,  it  refused  to  discharge  the  applicant  on 
habeas  corpus. 

The  Supreme  Court,  also,  is  reluctant  to  issue  the  writ 
when  the  circuit  court  may  do  so  with  equal  convenience.71 

72  u.  S.  v.  Ames  (C.  C.)  95  Fed.  453. 

7  3  Ex  parte  Clarke,  100  U.  S.  399,  25  L.  Ed.  715. 

7  4  106  U.  S.  521,  1  Sup.  Ot.  535,  27  L.  Ed.  288. 

7  6  137  U.  S.  393,  11  Sup.  Ct.  117,  34  L.  Ed.  713. 

7  6  150  U.  S.  637,  14  Sup.  Ct.  225,  37  L.  Ed.  1207. 

"  Ex  parte  Mirzan,  119  U.  S.  584,  7  Sup.  Ct  341,  30  L.  Ed.  518. 


181       DISTRICT  COURT — MISCELLANEOUS  JURISDICTION.       (Cll.  9 


SAME— PROCEDURE  ON  HABEAS  CORPUS. 

88.  Section  754  of  the  Revised  Statutes  7  8  requires  that  the 
application  shall  he  made  hy  complaint  in  writing, 
signed  hy  the  person  for  whose  relief  it  is  intended, 
setting  forth  the  facts  concerning  the  detention  of  the 
party  restrained,  in  whose  custody  he  is  detained,  and 
hy  virtue  of  what  claim  or  authority,  if  known;  and 
that  the  facts  set  forth  in  the  complaint  shall  he  ver- 
ified hy  the  oath  of  the  person  making  the  applica- 
tion. 

Requisites. 

This  provision  that  it  must  be  signed  by  the  party  for  whose 
relief  it  is  intended,  and  that  he  must  make  oath  to  it,  seems 
to  be  directory  only,  and  has  not  been  rigidly  enforced.  In 
the  case  of  In  re  Neagle  79  it  was  neither  signed  nor  sworn  to 
by  the  applicant,  but  by  some  one  in  his  behalf ;  and  so,  too, 
in  the  case  of  In  re  Baez.80 

The  applicant  must  set  out  the  facts  clearly,  and  show 
wherein  a  federal  question  is  involved.  Mere  general  allega- 
tions of  such  are  not  sufficient,  and  there  is  an  express  re- 
quirement that  the  claim  under  which  the  applicant  is  detained 
must  be  set  out,  if  known;  which  means  that  copies  of  the 
proceedings  attacked  must  be  set  out,  or  their  essential  parts 
stated  in  the  application.81 

Rule  to  Shoiv  Cause. 

The  court,  instead  of  issuing  the  writ  in  the  first  instance, 
may,  if  it  thinks  proper,  first  issue  a  rule  to  show  cause  why 
the  writ  should  not  issue.82 


T8  l  u.  S.  Comp.  St.  1901,  p.  593. 

7  8  in  RE  NEAGLE,  135  U.  S.  1,  10  Sup.  Ct.  658,  35  L.  Ed.  55. 
so  177  U.  S.  378,  20  Sup.  Ct.  673,  44  L.  Ed.  813. 
si  Ex  parte  Cuddy,  131  U.  S.  280,  9  Sup.  Ct.  703,  33  L.  Ed.  154; 
Whitten  v.  Touilinson,  160  U.  S.  231,  16  Sup.  Ct.  297,  40  L.  Ed.  406; 

82  in  re  Lewis  (C.  C.)  114  Fed.  963. 


§  88)  WRIT  OF   HABEAS   CORPUS.  185 

Will  Not  Issue  if  Petition  Shows  Applicant  Not  Entitled  to. 

Under  section  755  of  the  Revised  Statutes  83  the  court  may 
issue  the  writ,  unless  it  appears  from  the  petition  itself  that 
the  party  is  not  entitled  thereto.  Under  this  clause  of  the 
statute  it  has  been  held  that  the  writ  will  not  issue  when  it 
appears  upon  the  face  of  the  petition  that  the  prisoner  is  not 
entitled  to  it,  or  that  it  can  serve  no  beneficial  purpose  to 
the  applicant. 

In  Ex  parte  Terry  Si  the  application  showed  upon  its  face 
that  the  party  had  been  committed  for  contempt,  and  that 
the  court  had  authority  to  make  the  committal.  So  it  was 
refused. 

In  In  re  Boardman  85  no  federal  question  appeared  upon 
the  petition,  and,  as  it  was  evident  that  the  prisoner  would 
be  remanded  if  the  writ  issued,  the  court  refused  to  issue  it 
in  the  first  instance. 

In  In  re  Baez  8e  the  applicant  had  been  sentenced  for  ille- 
gally voting  in  Puerto  Rico,  but  it  appeared  that  his  sentence 
had  been  for  only  thirty  days,  that  most  of  it  had  expired 
when  the  writ  was  asked,  and  that  the  balance  would  expire 
before  the  court,  in  the  nature  of  things,  could  consider  the 
writ.  Hence  it  was  refused  as  involving  a  mere  moot  ques- 
tion. 

The  return  is  taken  to  be  true  until  it  is  disproved,87  and, 
where  the  writ  is  being  used  to  attack  collateral  proceedings 
in  another  court,  the  applicant  cannot  contradict  the  record 
whose  validity  he  is  questioning.88 

Kohl  v.  Lehlback,  160  U.  S.  293,  16  Sup.  Ct.  304,  40  L.  Ed.  432;  An- 
dersen v.  Treat,  172  U.  S.  24,  19  Sup.  Ct.  67,  43  L.  Ed.  351 ;  Craemer 
v.  State,  168  U.  S.  124,  18  Sup.  Ct.  1,  42  L.  Ed.  407. 

83  1  U.  S.  Cornp.  St.  1901,  p.  593. 

•*  128  U.  S.  289,  9  Sup.  Ct.  77,  32  L.  Ed.  405. 

8  5  169  U.  S.  39,  18  Sup.  Ct.  291,  42  L.  Ed.  653. 

86  177  U.  S.  378,  20  Sup.  Ct.  673,  44  L.  Ed.  813. 

87  Crowley  v.  Christensen,  137  U.  S.  86,  11  Sup.  Ct.  13,  34  L.  Ed. 
620. 

ss  In  re  Terry,  128  U.  S.  289,  9  Sup.  Ct.  77,  32  L.  Ed.  405. 


1SG       DISTRICT   COURT— MISCELLANEOUS  JURISDICTION.       (Ch.  9 

On  the  other  hand,  he  can  prove  facts  which  do  not  contra- 
dict the  record,  as  in  the  case  of  Ex  parte  Cuddy,89  where 
the  procedure  was  for  contempt  on  an  attempt  to  bribe  a 
juror.  The  record  did  not  show  where  the  attempt  to  bribe 
was  made,  and  the  court  held  that,  for  the  purpose  of  consid- 
ering the  question,  the  party  could  prove  this,  as  it  did  not 
contradict  the  record.*0 

Testimony,  however,  can  be  taken  when  it  does  not  contra- 
vene these  well-settled  rules.91 

Even  where  the  prisoner  is  entitled  to  a  writ,  the  court  will 
not  always  discharge  him  unconditionally,  but  will  frequently 
hold  him  until  the  proper  authorities  can  be  notified,  so  as 
to  permit  his  rearrest  in  case  the  error  complained  of  can  be 
corrected.92 

8"  i:;i    r.  S.  280,  9  Sup.  Ct.  703,  33  L.  Ed.  154. 

•0  Ex  parte  Mayfleld,  141  U.  S.  107,  11  Sup.  Ct.  939,  35  L.  Ed.  635. 

91  IN  RE  NEAGLE,  135  U.  S.  1,  10  Sup.  Ct.  658,  34  L.  Ed.  55; 
Storti  v.  Massachusetts,  183  U.  S.  138,  22  Sup.  Ct.  72,  46  L.  Ed.  120. 

»2  In  re  Medley,  134  U.  S.  160,  10  Sup.  Ct.  384,  33  L.  Ed.  835;  In 
re  Bonner,  151  U.  S.  242,  14  Sup.  Ct  323,  38  L.  Ed.  149. 


§  89)  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  187 

CHAPTER  X. 

THE  CIRCUIT  COURT— ORIGINAL  JURISDICTION. 

89.  Organization  of  the  Circuit  Courts. 

90.  Sessions  of  the  Circuit  Courts. 

91.  The  Jurisdiction  of  the  Circuit  Courts— Criminal  Jurisdiction. 

92.  The  Civil  Jurisdiction  of  the  Circuit  Courts. 

93.  Same — Suits  of  a  Civil  Nature  at  Common  Law  or  in  Equity — 

Meaning  of  "Suit." 

94.  Same — Same — Suits  at  Law. 

95.  Same — Same — Suits  in  Equity. 

96.  Same — Jurisdictional  Amount. 

97.  Same — Federal  Questions. 

98.  Same — Controversies  between  Citizens  of  Different  States— Nat- 

ural Persons. 

ORGANIZATION  OF  THE  CIRCUIT  COURTS. 

89.  The  entire  United  States  are  divided  into  nine  circuits, 
to  each  of  which  one  of  the  justices  of  the  Supreme 
Court  is  assigned.  Each  of  these  circuits  includes 
several  states,  and  each  state  one  or  more  judicial  dis- 
tricts. Each  judicial  district  has  a  circuit  court  of  its 
own,  the  only  link  between  the  circuit  courts  of  the 
different  districts  within  the  same  circuit  being  that 
the  same  Supreme  Court  justice  and  the  same  circuit 
judges  can  hold  them;  two  or  more  of  the  latter  be- 
ing appointed  for  each  circuit,  -who  may  hold  the  circuit 
courts  within  that  circuit.  In  addition  to  this,  a  dis- 
trict judge  for  any  judicial  district  may  hold  the  cir- 
cuit court  for  his  district.  Any  circuit  court  may  be 
held  by  any  one  of  the  above-named  judges  sitting 
alone,  or  by  any  two  of  them  sitting  together. 

Originally  the  only  judges  who  could  sit  in  the  circuit  courts 
were  the  district  judge,  who  could  hold  the  circuit  court  in  his 
own  district  in  so  far  as  its  jurisdiction  was  original,  and  the 
justice  assigned  to  that  circuit,  who  could  hold  the  circuit  court 


188  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Cll.  10 

of  any  district,  and  administer  both  its  original  jurisdiction  and 
the  appellate  jurisdiction  which  it  had  until  the  act  of  March 
3,  1891.  Soon  after  the  Civil  War  the  increased  duties  of  the 
Supreme  Court  justices  caused  the  establishment  of  a  circuit 
judge,  and  one  was  appointed  for  each  circuit.  He  could  hold 
the  circuit  courts  anywhere  in  the  circuit.  By  the  act  of 
March  3,  1891,  establishing  the  circuit  courts  of  appeals,  an 
additional  circuit  judge  was  established  for  each  circuit,  and 
since  then,  by  special  acts,  additional  circuit  judges  have  been 
provided  in  many  of  the  circuits.  Circuit  courts  may  now  be 
held  by  the  circuit  justice,  any  circuit  judge  of  the  circuit,  or  the 
district  judge  of  the  district  sitting  alone,  or  by  any  two  of  the 
said  judges  sitting  together.  This  seems  to  be  the  necessary 
construction  of  section  609  of  the  Revised  Statutes,1  which, 
however,  was  passed  before  the  establishment  of  the  additional 
circuit  judges,  and  in  terms  speaks  only  of  one  circuit  judge. 
Under  section  650, 2  when  the  circuit  justice  and  circuit 
judge,  or  circuit  justice  and  district  judge,  or  a  circuit  judge 
and  district  judge  are  holding  court  in  a  civil  case,  and  there  is 
a  difference  of  opinion  among  them,  the  opinion  of  the  pre- 
siding justice  or  judge  shall  prevail,  and  be  considered  the 
opinion  of  the  court  for  the  time.  Since  the  establishment  of 
two  or  more  circuit  judges  for  each  circuit,  there  has  been  no 
change  of  the  law  providing  for  a  case  where  two  circuit  judges 
are  sitting  together,  so  that  it  is  difficult  to  say  exactly  what 
would  happen  in  such  case.  As  any  circuit  judge  who  sits 
in  the  lower  court  disqualifies  himself  from  hearing  the  case 
on  appeal,  they  are  now  disinclined  to  sit  in  the  lower  court,  and 
still  more  disinclined  to  sit  with  each  other,  on  account  of  the 
difficulty  above   suggested. 

i  U.  S.  Comp.  St.  1901,  p.  494.  2  U.  S.  Comp.  St.  1901,  p.  527. 


§  92)  THE    CIVIL   JURISDICTION.  189 

THE  SESSIONS  OF  THE  CIRCUIT  COURTS. 

90.    The  word  "sessions"  is  used  in  the  federal  statutes  appar- 
ently as  synonymous  with  "terms." 

The  sessions  are  provided  by  section  658  of  the  Revised 
Statutes,8  which,  with  numerous  amendments,  names  the  time 
for  all  the  circuit  courts  throughout  the  Union.  In  addition 
to  these  regular  provisions,  the  judges  may  call  special  sessions 
for  the  trial  of  criminal  cases,  and  in  fact  in  many  of  the  cir- 
cuits the  terms  are  kept  open  by  adjournment  so  as  to  be  prac- 
tically continuous. 


THE    JURISDICTION    OF    THE    CIRCUIT    COURTS—CRIM- 
INAL  JURISDICTION. 

91.  The  circuit  court  has  concurrent  criminal  jurisdiction 
with  the  district  court,  and,  in  addition,  exclusive  ju- 
risdiction of  capital  cases.* 


THE  CIVIL  JURISDICTION  OF  THE  CIRCUIT  COURTS. 

92.    The    original    civil   jurisdiction    of   the    circuit    courts    ex- 
tends   to    all    cases    wherein    the    following    requisites 
concur: 
First.   It  must  he  a  suit  of  a  civil  nature  at  common  law  or 

in   equity. 
Second.    The  matter  in  dispute  must  exceed,  exclusive  of  in- 
terest   and    costs,    the    sum    or   value    of    two    thousand 
dollars,  except  where  the  United  States  are  plaintiffs 
or  petitioners. 
Third.    It  must  either 

(1)    Arise   under  the   Constitution  or  laws   of  the  United 
States,   or  treaties  made  under  their  authority;    or 

»  U.  S.  Comp.  St.  1901,  p.  530. 

*  U.  S.  Comp.  St.  1901,  p.  455 ;    Act  Aug.  13,  1888,  c.  866,  25  Stat 
433  [1  U.  S.  Comp.  St.  1901,  p.  508]. 


190  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  10 

(2)  It  must  be  a   case   in  which   the   United   States   are 

plaintiffs   or   petitioners;    or 

(3)  It    must   be    a   case   in   which   there    is   a   controversy 

between   citizens   of   different   states;    or 

(4)  It    must    be    a    controversy    between    citizens    of    the 

same  state  claiming  lands  under  grants  of  different 
states;    or 

(5)  It  must  be  a  case  in  which  there  is  a  controversy  be- 

tween citizens  of  a  state  and  foreign  states,  citizens 
or  subjects. 

The  circuit  court  is  the  court  which  has  jurisdiction  of  the 
usual  controversies  arising  between  man  and  man,  in  so  far  as 
the  federal  courts  have  jurisdiction  of  such  controversies ;  and 
in  this  respect  it  differs  from  the  district  court,  on  which  most 
of  the  special  statutory  subjects  of  jurisdiction  are  conferred. 
This  original  jurisdiction  of  the  circuit  courts  in  the  ordinary 
class  of  controversies  is  set  out  in  the  act  of  August  13,  1888,B 
which  is  an  evolution  of  the  acts  on  the  subject  from  the  judi- 
ciary act  of  1789  to  the  present  time.  The  first  section  of  this 
act  is  as  follows: 

"Be  it  enacted,"  etc.,  "That  the  circuit  courts  of  the  United 
States  shall  have  original  cognizance,  concurrent  with  the  courts 
of  the  several  states,  of  all  suits  of  a  civil  nature,  at  common 
law  or  in  equity,  where  the  matter  in  dispute  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  two  thousand  dollars, 
and  arising  under  the  Constitution  or  laws  of  the  United  States, 
or  treaties  made,  or  which  shall  be  made,  under  their  authority, 
or  in  which  controversy  the  United  States  are  plaintiffs  or  pe- 
titioners, or  in  which  there  shall  be  a  controversy  between  citi- 
zens of  different  states,  in  which  the  matter  in  dispute  exceeds, 
exclusive  of  interest  and  costs,  the  sum  or  value  aforesaid,  or 
a  controversy  between  citizens  of  the  same  state  claiming  lands 
under  grants  of  different  states,  or  a  controversy  between  citi- 
zens of  a  state  and  foreign  states,  citizens,  or  subjects,  in  which 
the  matter  in  dispute  exceeds,  exclusive  of  interest  and  costs, 

b  25  Stat  433,  c.  806  [1  U.  S.  Comp.  St.  1901,  p.  508]. 


§  92)  THE    CIVIL   JURISDICTION.  191 

the  sum  or  value  aforesaid,  and  shall  have  exclusive  cognizance 
of  all  crimes  and  offenses  cognizable  under  the  authority  of  the 
United  States,  except  as  otherwise  provided  by  law,  and  concur- 
rent jurisdiction  with  the  district  courts  of  the  crimes  and  of- 
fenses cognizable  by  them.  But  no  person  shall  be  arrested  in 
one  district  for  trial  in  another  in  any  civil  action  before  a  cir- 
cuit or  district  court;  and  no  civil  suit  shall  be  brought  before 
either  of  said  courts  against  any  person  by  any  original  process 
or  proceeding  in  any  other  district  than  that  whereof  he  is  an 
inhabitant,  but  where  the  jurisdiction  is  founded  only  on  the 
fact  that  the  action  is  between  citizens  of  different  states,  suit 
shall  be  brought  only  in  the  district  of  the  residence  of  either 
the  plaintiff  or  the  defendant ;  nor  shall  any  circuit  or  district 
court  have  cognizance  of  any  suit,  except  upon  foreign  bills  of 
exchange,  to  recover  the  contents  of  any  promissory  note  or 
other  chose  in  action  in  favor  of  any  assignee,  or  of  any  subse- 
quent holder  if  such  instrument  be  payable  to  bearer  and  be  not 
made  by  any  corporation,  unless  such  suit  might  have  been 
prosecuted  in  such  court  to  recover  the  said  contents  if  no  as- 
signment or  transfer  had  been  made." 

It  will  now  be  necessary  to  analyze  this  section  at  length,  as 
every  line  of  it  has  been  the  subject  of  much  discussion  and 
many  decisions.  It  will  be  observed,  also,  that  the  jurisdiction 
conferred  by  it  is  far  short  of  the  jurisdiction  which  Congress 
could  constitutionally  confer  upon  the  federal  courts,  and  the 
subsequent  discussion  will  show  that  it  is  limited  both  as  to 
the  character  of  the  suits  and  as  to  the  amount.  In  order  for 
the  federal  courts  to  have  jurisdiction  under  this  statute,  the 
following  requisites  must  concur:  First,  it  must  be  a  suit 
of  a  civil  nature  at  common  law  or  in  equity ;  second,  the  matter 
in  dispute  must  exceed,  exclusive  of  interest  and  costs,  the 
sum  or  value  of  $2,000  (except  where  the  United  States  are 
plaintiffs  or  petitioners) ;  third,  it  must  either  (1)  arise  under 
the  Constitution  or  laws  of  the  United  States,  or  treaties  made 
or  which  shall  be  made  under  their  authority,  or  (2)  it  must  be 
a  case  in  which  the  United  States  are  plaintiffs  or  petitioners, 


192  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  10 

or  (3)  it  must  be  a  case  in  which  there  is  a  controversy  between 
citizens  of  different  states,  or  (-1)  it  must  be  a  case  in  which  there 
is  a  controversy  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states,  or  (5)  it  must  be  a  case 
in  which  there  is  a  controversy  between  citizens  of  a  state  and 
foreign  states,  citizens  or  subjects. 

It  will  now  be  necessary  to  analyze  these  different  requisites 
seriatim. 


SAME— SUITS  OF  A  CIVIL  NATURE  AT  COMMON  LAW  OR 
IN   EQUITY— MEANING   OF   "SUIT." 

93.  It  is  not  every  procedure  which  is  a  suit.  The  word  is 
used  in  the  sense  of  a  proceeding  in  a  court  of  com- 
mon law  or  equity  which  culminates  in  a  judgment 
that  conclusively  determines  a  right  or  obligation  of 
the  parties,  so  that  the  same  matter  cannot  be  further 
litigated  except  by  writ  of  error  or  appeal.^ 

Matters  of  mere  administration  or  ex  parte  proceedings  are 
not  suits,  in  the  sense  of  this  statute.  For  instance,  it  is  well 
settled  under  this  section  that  the  federal  courts  have  no  pro- 
bate jurisdiction  for  admitting  or  refusing  the  probate  of  wills, 
or  for  administering  an  estate  by  virtue  thereof.7 

By  this  it  is  meant  that  the  federal  courts  have  no  probate 
jurisdiction  as  such.  If,  however,  they  have  jurisdiction  by 
virtue  of  the  citizenship  of  the  parties,  and  in  some  proceeding 
which  is  undoubtedly  a  common-law  or  equity  proceeding,  the 
fact  that  questions  under  a  will  are  involved  does  not  of  itself 
defeat  that  jurisdiction. 

A  proceeding  before  a  tribunal  charged  with  the  special  pow- 
er of  revising  a  tax  assessment  has  also  been  held  not  to  be 

e  In  re  Stutsman  Co.  (C.  C.)  88  Fed.  337. 

i  Ellis  v.  Davis,  109  U.  S.  485,  3  Sup.  Ct.  327,  27  L.  Ed.  1006;  UP- 
SHUR  CO.  v.  RICH,  13r>  U.  S.  467,  10  Sup.  Ct  651,  34  L.  Ed.  196; 
Wall]  v.  Franz.  100  Fed.  680,  40  C.  C.  A.  638,  49  L.  R.  A.  62. 


§  93)  THE    CIVIL    JURISDICTION.  193 

a  suit,  within  the  sense  of  the  federal  statute.  A  leading  case 
on  this  subject  is  Upshur  Co.  v.  Rich,8  which  considered  an  ap- 
peal to  a  body  called  a  county  court  in  West  Virginia.  The 
court,  however,  reviewing  the  state  statutes,  held  that  this  was 
not  a  court,  in  the  proper  sense  of  the  term;  that  its  duties 
were  merely  administrative,  and  not  judicial ;  and  that  there- 
fore the  federal  courts  had  no  jurisdiction  over  such  a  proceed- 
ing. On  the  other  hand,  in  In  re  Stutsman  Co.9  District 
Judge  Amidon  held  that  as  the  state  statute  in  that  case  made 
the  decision  of  the  court  conclusive  and  binding,  and  settled 
the  obligation  of  the  tax  bill  without  any  remedy  except  by  ap- 
peal, it  was  a  suit,  in  the  sense  of  the  statute. 

Under  the  same  principles,  a  proceeding  for  condemnation  of 
lands  may  or  may  not  be  a  suit,  according  to  its  nature.  In  so 
far  as  the  proceeding  is  merely  before  a  board  of  inquest,  it  is 
not  a  suit;  but  if  the  procedure  is  in  a  court,  and  unites  the 
other  requisites  of  jurisdiction,  it  may  be  one  of  which  the 
federal  court  could  take  jurisdiction.10 

A  mandamus  proceeding,  on  the  other  hand,  is  not  a  suit,  in 
this  sense,  because  mandamus  in  the  federal  courts  is  not  an 
original  writ,  but  rather  in  the  nature  of  a  writ  of  execution.11 

On  the  other  hand,  a  statutory  civil  action  under  a  state  law 
against  a  corporation  for  the  forfeiture  of  its  charter,  which 
is  the  practical  equivalent  of  a  quo  warranto  proceeding,  is 
such  a  suit.12 

So,  too,  a  writ  of  prohibition  would  come  within  this  term.13 

s  UPSHUR  CO.  v.  RICH,  135  U.  S.  467,  10  Sup.  Ct.  651,  34  L.  Ed. 
196.  See,  also,  PACIFIC  STEAM  WHALING  CO.  v.  U.  S.,  187  U. 
S.  447,  23  Sup.  Ct.  154,  47  L.  Ed.  253. 

9  (C.  C.)  88  Fed.  337. 

io  Mississippi  &  Rum  River  Boom  Co.  v„  Patterson,  98  U.  S.  403, 
25  L.  Ed.  206;   In  re  Delafield  (C.  C.)  109  Fed.  577. 

ii  Davenport  v.  Dodge  Co.,  105  U.  S.  237.  26  L.  Ed.  1018;  Rosen 
baum  v.  Bauer,  120  U.  S.  450,  7  Sup.  Ct.  633,  30  L.  Ed.  743. 

12  Ames  v.  Kansas,  111  U.  S.  449,  4  Sup.  Ct.  437,  28  L.  Ed.  482. 

13  Weston  v.  Charleston,  2  Pet.  449,  7  L.  Ed.  481. 

Hughes  Fed.Juk. — 13 


194  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  10 

A  habeas  corpus  proceeding  would  also  be  included  within 
the  term.1* 


SAME— SAME— SUITS  AT  LAW. 

94.  By  a  suit  at  law  is  not  meant  simply  a  suit  authorized  by 
the  proceedings  of  the  common  law  as  distinguished 
from  statutory  proceedings,  but  it  means  a  suit  admin- 
istering a  legal  right  or  title  as  distinguished  from 
proceedings  in  equity  or  in  admiralty.1 6 


SAME— SAME— SUITS  IN  EQUITY. 

95.  A  suit  in  equity  means  a  suit  within  the  jurisdiction  of 
an  equitable  court,  as  that  jurisdiction  existed  at  the 
time  when  the  Constitution  went  into  effect.  This 
was  practically  the  jurisdiction  of  the  old  high  court 
of  chancery  in  England,  and  while  the  principle  is  well 
established  in  the  federal  courts  that  equity  has  no 
jurisdiction  if  there  is  an  adequate  remedy  at  law,  it 
is  equally  well  established  that  state  legislation  can, 
in  a  general  sense,  neither  enlarge  nor  restrict  the  ju- 
risdiction of  the  federal  courts  in  equity;  and  hence 
the  fact  that  there  may  be  now  an  adequate  remedy 
at  law  by  virtue  of  a  state  statute  does  not  defeat  the 
jurisdiction  of  the  federal  equity  court  if  the  case  is 
of  a  character  in  which  it  -would  have  had  jurisdic- 
tion in  1 789.i  e 

This  principle  that  a  state  cannot  enlarge  the  jurisdiction  of 
the  federal  equity  courts  is  a  very  important  one.     It  can  hardly 

14  Holmes  v.  Jennison,  14  Pet.  540,  10  L.  Ed.  579,  618. 

16  Fenn  v.  Holme,  21  How.  481,  16  L.  Ed.  198;  Kohl  v.  U.  S.,  91 
U.  S.  367,  23  L.  Ed.  449*  Ellis  v.  Davis,  109  U.  S.  485,  3  Sup.  Ct. 
327,  27  L.  Ed.  1006. 

is  McCONIHAY  v.  WRIGHT,  121  U.  S.  201,  7  Sup.  Ct.  940,  30  L. 
Ed.  932;  Arrowsmith  v.  Gleason,  129  U.  S.  86,  9  Sup.  Ct.  237,  32  L. 
Ed.  030;  England  v.  Russell  (C.  C.)  71  Fed.  818;  Green  v.  Turner 
(C.  C.)  98  Fed.  756;  National  Surety  Co.  v.  Bank,  120  Fed.  593,  56 
C.  C.  A.  657,  61  L.  R.  A.  394. 


§§  94-95)  THE    CIVIL    JURISDICTION.  195 

be  considered  to  go  so  far  as  to  say  that  no  additional  state 
remedy  in  equity  can  be  adopted  by  the  federal  courts,  but  it 
is  clear  that  such  additional  remedies  cannot  be  adopted  if  they 
would  violate  other  provisions  of  the  federal  Constitution — 
notably,  the  provision  that  the  right  of  jury  trial  shall  be  pre- 
served. An  analysis  of  the  cases  to  be  quoted  shows  that 
this  is  the  point  on  which  practically  all  of  them  turn.  It  is 
believed  that  a  new  remedy  in  equity  given  by  the  state  court 
as  to  cases  in  which  the  party  would  not  have  been  entitled  to 
a  jury  trial  at  common  law  could  be  adopted  by  the  federal 
courts.17 

As  an  illustration  of  the  principle  that  a  state  statute  cannot 
substitute  an  equitable  procedure  for  one  which  at  common  law 
would  have  been  before  a  jury,  Whitehead  v.  Shattuck  18  was 
a  case  in  which  the  state  statute  gave  a  party  who  was  out  of 
possession  a  statutory  right  to  proceed  in  equity  to  settle  the 
title  to  real  estate.  The  Supreme  Court  held  that  the  federal 
court  would  have  no  jurisdiction  over  it.  So,  too,  where  a 
state  statute  gave  a  simple-contract  creditor  the  right  to  file  a 
bill  in  equity  to  set  aside  a  conveyance  alleged  to  be  fraudulent, 
though  it  gave  him  a  lien  from  the  date  of  filing  his  bill,  it 
was  held  that  the  federal  courts  had  no  jurisdiction,  and  that  it 
was  necessary  to  proceed  to  judgment  on  the  claim  at  common 
law  before  such  a  creditor  could  file  a  bill,  or  at  least  to  have 
some  lien  or  charge  which  was  enforceable  under  the  general 
principles  of  equity  jurisprudence.19 

it  National  Surety  Co.  v.  Bank,  120  Fed.  593,  56  C.  C.  A.  657,  61 
L.  R.  A.  394. 

is  138  U.  S.  146,  11  Sup.  Ct.  276,  34  L.  Ed.  873. 

is  SCOTT  v.  NEELY,  140  TJ.  S.  106,  11  Sup.  Ct.  712,  35  L.  Ed.  358; 
Cates  v.  Allen,  149  U.  S.  451,  13  Sup.  Ct.  977,  37  L.  Ed.  S04;  Hol- 
lins  v.  Iron  Co.,  150  TJ.  S.  371,  14  Sup.  Ct.  127,  37  L.  Ed.  1113. 


196  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  10 


SAME— JURISDICTIONAL  AMOUNT. 

96.  "The  matter  in  dispute  must  exceed,  exclusive  of  interest 
and  costs,  the  sum  or  value  of  $2,000."  The  "matter 
in  dispute,"  in  the  sense  in  which  it  is  used  as  defin- 
ing the  pecuniary  jurisdiction  of  the  federal  courts, 
means  the  claim  presented  on  the  record  to  the  con- 
sideration of  the  court,  though,  as  a  matter  of  fact, 
the  claim  is  not  sustained  by  the  proof,  or  though  it  is 
only  in  part  well  founded.  It  is  the  pecuniary  conse- 
quences to  the  party  which  are  dependent  on  the  liti- 
gation. 2o 

This  means  the  amount  or  value  directly  at  issue  between  the 
parties  in  the  special  suit.  The  collateral  effect  of  that  suit 
cannot  be  considered.  For  instance,  where  suit  is  brought 
upon  coupons  detached  from  bonds  whose  amounts  were  less 
than  $2,000,  and  the  issue  raised  involved  not  merely  the 
validity  of  the  coupons,  but  the  validity  of  the  bonds  them- 
selves, this  fact  did  not  give  jurisdiction.21 

The  former  statutes  as  to  the  jurisdiction  of  the  federal  cir- 
cuit courts  prescribed  a  lesser  amount  than  the  present  limit 
of  $2,000,  and  did  not  exclude  interest  from  the  computation. 
Hence  decisions  passing  upon  the  amount  then  required  are 
in  point  as  to  the  general  principle,  though  this  difference  be- 
tween them  must  be  borne  in  mind. 

Prior  to  the  establishment  of  the  circuit  courts  of  appeals, 
the  limit  to  the  jurisdiction  of  the  United  States  Supreme  Court 
was  for  a  long  time  $2,000,  and  then  $5,000.  The  statutes  de- 
fining this  limit  used  the  same  language  as  the  above,  except 


20  Kanouse  v.  Martin,  15  How.  198,  14  L.  Ed.  660;  Schunk  v. 
Stoddard  Co.,  147  U.  S.  500,  13  Sup.  Ct.  416,  37  L.  Ed.  255;  WHE- 
LESS  v.  ST.  LOUIS,  ISO  U.  S.  379,  21  Sup.  Ct.  402,  45  L.  Ed.  583. 

2i  Town  of  Elgin  v.  Marshall,  106  U.  S.  578,  1  Sup.  Ct.  484,  27  L. 
Ed.  249;  Bruce  v.  Railroad  Co.,  117  U.  S.  514,  6  Sup.  Ct.  849,  29  L. 
Ed.  990. 


§  96)  THE    CIVIL   JURISDICTION.  197 

that  interest  was  not  excluded  from  the  calculation.  Hence 
decisions  on  the  statutes  limiting  the  jurisdiction  of  the  Su- 
preme Court  are  also  in  point,  and  it  will  be  found  that  many 
of  those  referred  to  under  this  title  relate  to  the  jurisdiction  of 
the  Supreme  Court  under  the  former  law. 

The  claim  asserted  by  the  plaintiff,  in  order  to  give  jurisdic- 
tion, must  be  actually  asserted  in  good  faith,  and  not  colorable 
merely.  If,  for  instance,  coupons  or  other  evidences  of  indebt- 
edness are  transferred  to  a  prospective  plaintiff  without  consid- 
eration, and  merely  for  the  purpose  of  collection,  the  court 
will  not  acquire  jurisdiction.  Not  only  this,  but  under  another 
section  of  the  statute  it  is  the  duty  of  the  court,  of  its  own  mo- 
tion, even  without  a  plea,  to  dismiss  the  case  for  want  of  juris- 
diction on  discovering  that  the  suit  does  not  really  and  substan- 
tially involve  a  dispute  or  controversy  properly  within  the  juris- 
diction of  the  court,  or  that  the  parties  to  the  suit  have  been 
improperly  or  collusively  made  or  joined  either  as  plaintiffs 
or  defendants  for  the  purpose  of  creating  a  case  cognizable  by 
the  federal  courts.82 

In  considering  whether  the  case  involves  a  sufficient  amount 
to  give  the  court  jurisdiction,  reference  will  be  made,  not  to 
the  ad  damnum  clause  alone,  but  to  the  whole  declaration.  For 
instance,  where  replevin  was  brought  for  liquors  alleged  to  be 
worth  $1,000,  and  the  item  of  special  damage  to  complainant's 
business  was  added,  but  it  was  apparent  from  the  face  of  the 
declaration  itself  that  the  item  was  not  recoverable,  the  court 
refused  to  sustain  jurisdiction,  though  the  ad  damnum  clause 
was  large  enough,  considered  alone,  to  give  it.23 

So,  too,  where  the  ad  damnum  clause  was  high  enough,  but 
one  item  of  damage  was  claimed,  which,  on  the  face  of  the  dec- 
laration, appeared  to  be  illegal  or  not  recoverable  or  prova- 


22  Waite  v.  Santa  Cruz,  184  U.  S.  302,  22  Sup.  Ct.  327,  46  L.  Ed. 
552. 

23  Vance  v.  Vandercook  Co.,  170  U.  S.'468,  18  Sup.  Ct.  645,  42  L. 
Ed.  1111. 


198  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  10 

ble  in  evidence,  the  court  held  that  the  jurisdiction  did  not 
attach.24 

On  the  other  hand,  in  suits  where  there  is  no  fixed  measure 
of  damages  prescribed  by  law,  as  in  suits  for  malicious  torts 
or  trespass,  the  court  is  practically  compelled  to  go  by  the  ad 
damnum  clause,  for  the  question  of  the  amount  of  damages  in 
such  case  is  for  the  jury ;  and  the  court  cannot  say,  as  matter 
of  law,  that  the  ad  damnum  clause  is  laid  too  high,  even  though 
it  might  think  that  a  recovery  would  not  exceed  the  statutory 
requirement.20 

As  the  measure  is  the  plaintiff's  claim,  and  not  the  amount 
actually  due  him,  the  final  result  is  no  test,  and  therefore  the 
fact  that  the  recovery  is  for  less  than  the  jurisdictional  amount 
is  immaterial.  If  this  were  not  so,  every  verdict  for  a  defend- 
ant in  the  federal  court  would  conclusively  establish  the  lack  of 
jurisdiction  of  the  court.26 

Where  the  defendant  sets  up  a  counterclaim  and  asks  for  a 
cross-recovery,  so  that  the  question  at  issue  is  not  simply  the 
amount  claimed  by  the  plaintiff,  but  also  the  amount  claimed 
by  the  defendant,  the  aggregate  of  the  two  amounts  is  the 
matter  in  dispute.27 

So,  too,  where  a  counterclaim  is  set  up  as  a  defense  merelv 
in  reduction  of  the  plaintiff's  claim,  it  does  not  defeat  the  juris- 
diction, if  the  plaintiff's  claim  before  any  pleading  was  put 
in  was  sufficient  in  amount.28 

Where  the  plaintiff  sues  for  an  amount,  part  whereof  is 
barred  by  the  statute  of  limitations,  and  this  is  apparent  upon 
the  petition,  the  court  still  has  jurisdiction,  for  the  statute  of 

24  North  American  Transportation  &  Trading  Co.  v.  Morrison,  178 
U.  S.  262,  20  Sup.  Ct.  869,  44  L.  Ed.  1061. 

26  Barry  v.  Edmunds,  116  U.  S.  550,  6  Sup.  Ct.  501,  29  L.  Ed.  729; 
Scott  v.  Donald,  1G5  U.  S.  58,  17  Sup.  Ct.  265,  41  L.  Ed.  632;  Wiley 
v.  Sinkler,  179  U.  S.  58,  21  Sup.  Ct.  17,  45  L.  Ed.  84. 

26  Scott  v.  Donald,  165  U.  S.  58,  17  Sup.  Ct.  265,  41  L.  Ed.  632. 

2  7  Block  v.  Darling,  140  U.  S.  234,  11  Sup.  Ct.  832,  35  L.  Ed.  476. 

zs  Pickbam  v.  Manufacturing  Co..  77  Fed.  663,  23  C.  C.  A.  391; 
168  U.  S.  708,  18  Sup.  Ct.  945,  42  L.  Ed.  1211. 


§  96)  THE    CIVIL   JURISDICTION.  199 

limitations  is  a  personal  plea,  and  the  court  cannot  know  judi- 
cially that  the  defendant  will  interpose  it.29 

The  present  act  excludes  interest  from  the  computation  in 
considering  the  jurisdiction  of  the  circuit  court.  This,  how- 
ever, means  interest  only  as  such.  Where  suit  is  brought  for 
a  cause  of  action  into  which  a  calculation  of  interest  enters 
merely  as  an  item  of  damage,  this  does  not  defeat  the  juris- 
diction of  the  court.  For  instance,  in  a  suit  for  damages  for 
a  breach  of  warranty,  where  under  the  state  statute  the  meas- 
ure of  damages  was  the  cost  of  the  property,  with  interest,  the 
court  had  jurisdiction,  though  the  cost,  independent  of  interest, 
would  not  have  given  it.80 

So,  too,  suits  on  matured  coupons  can  take  the  coupons  into 
account  as  well  as  the  bonds,  for  detached  and  matured  cou- 
pons are  separate  demands  bearing  interest  themselves,  and 
are  not  mere  incidents  of  the  present  debt.31 

In  order  for  the  federal  circuit  court  to  have  jurisdiction  un- 
der this  clause,  the  subject-matter  in  dispute  must  be  capable  of 
pecuniary  estimation ;  hence,  although  a  proceeding  by  habeas 
corpus  is  a  suit  at  law  or  equity,  as  above  explained,  the  circuit 
court  would  not  have  jurisdiction  of  it  by  virtue  of  this  statute, 
for  the  reason  that  no  monetary  amount  is  involved  in  it. 
The  custody  of  a  child,  for  instance,  "rises  superior  to  money 
considerations."  8S 

Of  course,  these  remarks  as  to  habeas  corpus  merely  mean 
that  a  federal  circuit  court  has  no  jurisdiction  of  such  a  pro- 
cedure by  virtue  of  this  special  statute.  It  is  given  jurisdic- 
tion of  habeas  corpus  proceedings  by  virtue  of  other  statutes 
which  have  been  already  discussed. 

29  Board  of  Com'rs  of  Kearney  Co.  v.  Vandriss,  115  Fed.  866,  53 
C.  C.  A.  192;  187  U.  S.  642,  23  Sup.  Ct.  843,  47  L.  Ed.  346;  Schunk 
v.  Stoddard  Co.,  147  U.  S.  500,  13  Sup.  Ct.  416,  37  L.  Ed.  255. 

so  Brown  v.  Webster,  156  U.  S.  328,  15  Sup.  Ct.  377,  39  L.  Ed.  440. 

si  EDWARDS  v.  BATES  CO.,  163  U.  S.  269,  16  Sup.  Ct.  967,  41 
L.  Ed.  155. 

32  Barry  v.  Mercein,  5  How.  103,  12  L.  Ed.  70;  Kurtz  v.  Moffitt, 
115  U.  S.  487,  6  Sup.  Ct.  148,  29  L.  Ed.  458. 


200  CIRCUIT    COURT ORIGINAL    JURISDICTION.  (Cll.  10 

In  considering  the  matter  in  dispute,  the  damages  suffered 
are  not  always  the  test.  For  instance,  in  a  suit  to  have  a  bridge 
removed,  as  a  nuisance,  the  matter  in  dispute  is  not  merely  the 
damage  caused  to  the  plaintiff,  but  the  value  of  the  structure 
to  be  removed.38 

So,  in  a  procedure  by  injunction,  the  test  of  jurisdiction  is 
the  value  of  the  right  to  be  protected  or  the  injury  to  be  pre- 
vented.34 

In  a  proceeding  by  a  creditor  to  set  aside  an  alleged  fraud- 
ulent transfer  of  property,  the  jurisdiction  is  determined  by 
the  amount  for  which  the  creditor  sues,  not  by  the  value  of  the 
property,  for  the  defendant,  by  paying  that  amount,  would  be 
discharged  from  all  obligation.35 

So,  in  a  suit  to  restrain  an  alleged  illegal  issue  of  bonds 
on  the  ground  that  the  plaintiff's  taxes  will  be  materially  in- 
creased, the  jurisdiction  is  determined  by  the  amount  of  the 
taxes  the  plaintiff  would  have  to  pay,  not  by  the  value  of  the 
total  bond  issue.36 

Plurality  of  Plaintiffs  or  Defendants. 

Where  there  is  more  than  one  plaintiff,  the  general  rule  is 
that  if  the  interests  of  the  plaintiffs  are  joint,  and  not  several, 
the  entire  amount  will  be  taken  into  consideration  in  determin- 
ing the  jurisdiction ;  but  if  their  interests  are  several,  and  they 
have  merely  joined  for  convenience  in  bringing  the  suit,  then 
the  amounts  due  to  the  different  plaintiffs  cannot  be  joined  for 
the  purpose  of  conferring  jurisdiction. 

This  is  the  general  rule,  though  sometimes  it  may  be  difficult 

as  Mississippi  &  M.  Ry.  Co.  v.  Ward,  2  Black,  485,  17  L.  Ed.  311; 
Rainey  v.  Herbert,  55  Fed.  443,  5  C.  C.  A.  183. 

8  4  Nashville,  C.  &  St.  L.  Ry.  Co.  v.  McConnell  (C.  C.)  82  Fed.  65; 
Humes  v.  Ft.  Smith  (C.  C.)  93  Fed.  857. 

35  Werner  v.  Murphy  (C.  C.)  60  Fed.  769;  Alkire  Grocery  Co.  v. 
Richesin  (C.  C.)  91  Fed.  79. 

se  Colvin  v.  Jacksonville,  158  U.  S.  456,  15  Sup.  Ct.  866,  39  L.  Ed. 
1053;  Linehan  Ry.  Transfer  Co.  v.  Peudergrass,  70  Fed.  1  16  C  C 
A.  585. 


§96)  THE    CIVIL    JURISDICTION.  201 

to  draw  the  exact  line.87  For  instance,  in  the  case  of  New 
Orleans  Pac.  Ry.  Co.  v.  Parker,38  a  bondholder  brought  suit 
on  behalf  of  all  the  bondholders  under  a  mortgage,  and  actually 
represented  more  than  two  hundred  bonds,  and  the  mortgage 
permitted  suit  by  any  bondholder.  The  court  held  in  such 
case  that  all  the  bonds  could  be  considered  for  the  purpose 
of  conferring  jurisdiction,  as  all  the  bonds  claimed  under  the 
common  source  of  title ;   that  is,  the  mortgage. 

On  the  other  hand,  in  Wheless  v.  St.  Louis  39  several  parties 
owning  separate  lots  brought  a  suit  attacking  an  assessment 
against  them  for  improving  a  street.  The  court  held  in  such 
case  that  their  interests  were  several,  only,  and  could  not  be 
joined  for  the  purpose  of  jurisdiction. 

This  same  principle  applies  as  to  joining  the  defendants. 
Where  the  claims  against  the  separate  defendants  are  several, 
they  cannot  be  joined  for  the  purpose  of  conferring  jurisdic- 
tion. For  instance,  suits  against  different  county  officers,  com- 
bining them  as  defendants,  to  enjoin  the  collection  of  a  tax 
separately  assessed  in  their  different  counties,  were  several, 
and  the  claims  against  these  different  defendants  could  not  be 
joined  for  the  purpose  of  conferring  jurisdiction.40 

This  principle,  however,  does  not  prevent  parties  from  filing 
petitions  for  amounts  under  the  jurisdictional  amount  where 
a  suit  involving  the  proper  amount  has  already  been  brought, 
and  the  court  has  therefore  acquired  jurisdiction.  If,  in  ad- 
ministering a  fund,  the  court  has  acquired  jurisdiction  at  the 
suit  of  one  who  had  a  sufficient  amount  to  give  it,  petitions  filed 
by  others  to  share  in  the  result  of  the  suit  are  merely  incidental, 
and  can  be  considered  by  the  court,  even  though  they  could  not 

3  7  Rainey  v.  Herbert,  55  Fed.  443,  5  C.  C.  A.  183. 

ss  143  U.  S.  42,  12  Sup.  Ct.  364,  36  L.  Ed.  66. 

a»  WHELESS  v.  ST.  LOUIS,  180  U.  S.  379,  21  Sup.  Ct.  402,  45  L. 
Ed.  583. 

40  Walter  v.  Railway  Co.,  147  U.  S.  370,  13  Sup.  Ct.  348,  37  L.  Ed. 
206 ;  FISHBACK  v.  TELEGRAPH  CO.,  161  U.  S.  96,  16  Sup.  Ct.  506, 
40  L.  Ed.  630;  Citizens'  Bank  v.  Cannon,  164  U.  S.  319,  17  Sup.  Ct. 
89,  41  L.  Ed.  451. 


202  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Cll.  10 

originally  have  combined  for  the  purpose  of  giving  jurisdic- 
tion.41 

The  fact  that  the  requisite  amount  is  involved  must  appear 
from  the  allegations  of  fact  in  the  declaration.  A  mere  gen- 
eral allegation  that  the  sum  of  $2,000  is  involved  amounts  to 
nothing  more  than  a  conclusion  of  law,  and  is  not  sufficient, 
unless  the  other  parts  of  the  declaration  bear  it  out.42 

Under  this  clause  the  court  has  held  that  the  limitation  of 
$2,000  does  not  apply  to  suits  by  the  United  States.  The 
case  which  decides  this  contains  a  paraphrase  of  the  statute 
as  its  meaning  is  gathered  by  the  Supreme  Court,  which  makes 
it  much  plainer  than  the  act  itself,  and  makes  many  of  its  diffi- 
culties disappear.4* 


SAME— FEDERAL   QUESTIONS. 

97.  The  first  and  second  requisites  above  referred  to  being 
present,  the  jurisdiction  extends  to  cases  arising  under 
the  Constitution  or  laws  of  the  United  States,  or  trea- 
ties made  or  which  shall  be  made  under  their  author- 
ity. This  class  of  questions  is  commonly  called  federal 
questions,  and  a  federal  question  is  involved  not  mere- 
ly when  the  construction  of  a  federal  statute  inci- 
dentally arises,  but  when  the  case  necessarily  turns 
upon  the  construction  of  the  federal  laws,  as  when  the 
plaintiff  -would  be  defeated  by  one  construction,  or 
successful  by  another. 

Under  the  statute,  it  is  not  sufficient  that  the  suit  must  be 
at  law  or  in  equity,  and  must  involve  $2,000.  In  addition,  one 
of  several  other  conditions  must  concur:  Either  (1)  the  case 
must  arise  under  the  Constitution  or  laws  of  the  United  States, 
or  treaties  made  or  which  shall  be  made  under  their  authority ; 

4i  Handley  v.  Stutz,  137  U.  S.  366,  11  Sup.  Ct.  117,  34  L.  Ed.  706; 
National  Bank  v.  Allen,  90  Fed.  545,  33  C.  C.  A.  169. 

42  FISHBACK  v.  TELEGRAPH  CO.,  161  U.  S.  96,  16  Sup.  Ct.  506, 
40  L.  Ed.  630. 

*8  U.  S.  v.  SAYWARD,  160  U.  S.  493,  16  Sup.  Ct.  371,  40  L.  Ed.  508. 


§  97)  THE    CIVIL    JURISDICTION.  203 

or  (2)  it  must  be  a  controversy  between  citizens  of  different 
states;  or  (3)  it  must  be  a  controversy  between  citizens  of  the 
same  state  claiming  lands  under  grants  of  different  states ;  or 
(4)  it  must  be  a  controversy  between  citizens  of  a  state  and  for- 
eign states,  citizens  or  subjects.  These  requisites  must  now 
be  considered  in  their  order. 

Cases  Arising  under  the  Constitution  or  Laws  of  the  United 
States,  or  Treaties  Made  or  Which  shall  be  Made  under 
Their  Authority. 
If  the  case  is  of  this  nature,  the  federal  court  has  juris- 
diction independent  of  any  question  of  citizenship.     The  two 
great  branches  of  jurisdiction  of  the  circuit  court  in  ordinary 
controversies  are,  first,  cases  depending  upon  the  nature  of 
the  controversy — that  is,  involving  a  federal  question,  as  this 
branch  is  usually  designated ;  and,  second,  cases  depending  up- 
on the  citizenship  of  the  parties. 

In  another  connection  (the  question  of  appeals  from  the  state 
courts  to  the  Supreme  Court)  it  will  be  found  that  this  term 
"federal  question"  is  used  in  a  rather  more  restricted  sense 
than  in  the  sense  in  which  it  is  used  as  defining  the  jurisdiction 
of  the  federal  circuit  courts.  In  the  latter  class  of  cases,  a 
case  involves  a  federal  question  when  its  correct  decision  de- 
pends upon  the  construction  of  the  federal  Constitution  or  stat- 
utes, or  when  the  plaintiff  would  be  defeated  by  one  construc- 
tion or  sustained  by  another.44 

Pleadings  must  Shoiu  Federal  Question. 

In  order  for  this  ground  of  jurisdiction  to  exist,  however, 
a  mere  general  allegation  that  the  plaintiff's  case  rests  upon 
a  construction  of  the  federal  Constitution  or  statutes  is  not 
sufficient.  The  facts  in  his  pleading  must  show  this.  And  it 
must  also  appear  that  the  plaintiff's  own  case  necessarily  de- 
pends upon  the  construction  of  the  federal  Constitution  or  stat- 

44  LITTLE  YORK  GOLD  WASHING  &  WATER  CO.  V.  KEYES, 
96  D.  S.  199,  24  L.  Ed.  656;  Tennessee  v.  Davis,  100  U.  S.  257,  25  L. 
Ed  648. 


204  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  10 

utes.  If  it  is  not  part  of  the  plaintiff's  case,  he  cannot  give 
jurisdiction  by  anticipating  in  his  pleading  the  defense  which 
he  expects  the  defendant  to  make,  and  stating  that  such  defense 
turns  upon  a  federal  question.  It  must  be  part  of  the  plaintiff's 
own  case.48 

If,  however,  it  does  appear  from  the  plaintiff's  pleading  that 
a  federal  question  is  involved,  the  jurisdiction  of  the  court 
is  not  defeated  by  the  fact  that  other  nonfederal  questions  may 
also  be  involved.46 

The  jurisdiction  depends  upon  the  plaintiff's  allegations,  not 
upon  the  construction  which  the  defendant  gives  them.47 

As  a  general  rule,  the  jurisdiction  is  dependent  upon  the 
plaintiff's  own  statement;  but  if  the  plaintiff  puts  in  a  fed- 
eral question  which  has  not  even  a  color  of  merit,  or  if  he  rais- 
es a  federal  question,  and  the  defendant  by  his  answer  admits 
his  construction  of  it,  the  court  may  dismiss  the  suit  of  its  own 
motion  under  another  section  of  the  act,  which  permits  it  to  do 
so  whenever  it  appears  that  a  case  giving  the  federal  courts 
jurisdiction  is  not  necessarily  involved.48 

Some  concrete  instances  of  suits  involving  federal  questions 

45  FLORIDA  C.  &  P.  R.  CO.  v.  BELL,  176  U.  S.  321,  20  Sup.  Ct 
399.  44  L.  Ed.  486 ;  Third  Street  &  Suburban  R.  Co.  v.  Lewis.  173  U. 
S.  457,  19  Sup.  Ct  451,  43  L.  Ed.  766 ;  Western  Union  Telegraph  Co. 
v.  R.  Co.,  178  U.  S.  239,  20  Sup.  Ct.  867,  44  L.  Ed.  1052;  Arkansas 
v.  Coal  Co.,  183  U.  S.  185,  22  Sup.  Ct.  47,  46  L.  Ed.  144;  Boston  & 
M.  Consol.  Copper  &  Silver  Min.  Co.  v.  Ore  Purchasing  Co.,  188  U. 
S.  632,  23  Sup.  Ct.  434,  47  L.  Ed.  626;  TENNESSEE  v.  BANK,  152 
U.  S.  454,  14  Sup.  Ct  654,  38  L.  Ed.  511;  Defiance  Water  Co.  v. 
Defiance,  191  U.  S.  184,  24  Sup.  Ct.  63,  48  L.  Ed.  140. 

4  8  New  Orleans,  M.  &  T.  R.  Co.  v.  Mississippi,  102  U.  S.  135,  26  L. 
Ed.  96;  St.  Paul,  M.  &  M.  R.  Co.  v.  Railway  Co.,  68  Fed.  2,  15  C.  C. 
A.  167;   18  Sup.  Ct.  946,  42  L.  Ed.  1212. 

4v  Central  Ry.  of  New  Jersey  Co.  v.  Mills,  113  U.  S.  249,  5  Sup. 
Ct.  456,  28  L.  Ed.  949. 

4  9  White  v.  Rankin,  144  U.  S.  628,  12  Sup.  Ct.  768,  36  L.  Ed.  569; 
McCain  v.  Des  Moines,  174  U.  S.  168,  19  Sup.  Ct.  644,  43  L.  Ed.  936; 
Excelsior  Wooden  Pipe  Co.  v.  Bridge  Co.,  185  U.  S.  282,  22  Sup.  Ct. 
681,  46  L.  Ed.  910. 


§  97)  THE    CIVIL   JURISDICTION.  205 

may  make  this  clear,  bearing  in  mind  that  the  plaintiff's  plead- 
ing must  show  the  necessary  jurisdictional  facts.  It  is  well 
settled  that  a  suit  against  a  corporation  organized  under  an  act 
of  Congress  itself  necessarily  involves  a  federal  question,  and 
can  be  brought  in  the  federal  courts,  if  the  other  requisites  of 
jurisdiction  concur.49 

So  a  suit  on  the  bond  of  a  United  States  marshal  for  an  ille- 
gal seizure  of  goods  under  a  writ  of  the  United  States  court 
involves  a  federal  question.50 

So,  too,  a  suit  on  a  clerk's  bond,  brought  by  a  private  suitor, 
which  raises  the  question  whether  the  sureties  on  the  bond 
were  liable  for  money  paid  into  court  on  a  tender,  involves  a 
federal  question.61  So  a  suit  by  a  materialman  against  the 
sureties  on  a  government  contractor's  bond.52 

A  suit  to  determine  the  validity  of  the  consolidation  of  two 
railway  companies,  authorized  by  act  of  Congress,  involves  a 
federal  question.53 

Suits  to  restrain  the  collection  of  taxes  alleged  to  violate 
the  constitutional  provision  as  to  due  process  of  law  are  quite 
frequent  in  the  federal  courts.  If  they  turn  upon  the  question 
whether  the  state  law  under  which  the  tax  is  assessed  is  a 
violation  of  the  federal  Constitution,  they  involve  a  federal 
question.  If  it  is  a  mere  question  whether  they  involve  a 
conflict  of  a  state  law  with  the  state  Constitution,  of  course, 
they  do  not  involve  a  federal  question.54 

49  Union  Pac.  R.  Co.  v.  Harris,  158  U.  S.  326,  15  Sup.  Ct.  843,  39 
L.  Ed.  1003;  Texas  &  P.  R.  Co.  v.  Cox,  145  U.  S.  593,  12  Sup.  Ct. 
905,  36  L.  Ed.  829. 

so  Feibelman  v.  Packard,  109  U.  S.  421,  3  Sup.  Ct.  289,  27  L.  Ed. 
984;   Bock  v.  Perkins,  139  U.  S.  628,  11  Sup.  Ct.  677,  35  L.  Ed.  314. 

ei  Howard  v.  U.  S.,  184  U.  S.  676,  22  Sup.  Ct.  543,  46  L.  Ed.  754. 

62  28  Stat.  278,  c.  280  [U.  S.  Conip.  St.  1901,  p.  2523];  Mullin  v. 
U.  S..  109  Fed.  817,  48  C.  C.  A.  677. 

53  Ames  v.  Kansas,  111  U.  S.  449,  4  Sup.  Ct.  437.  28  L.  Ed.  482. 

64  Village  of  Norwood  v.  Baker,  172  U.  S.  269,  19  Sup.  Ct.  187,  43 
L.  Ed.  443;  Wheeler  v.  Railroad  Co..  178  U.  S.  321,  20  Sup.  Ct.  949, 
44  L.  Ed.  1085;    McCain  v.  Des  Moines,  174  U.  S.  168,  19  Sup.  Ct. 


20G  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Cll.  10 

In  order  for  the  federal  court  to  have  jurisdiction,  it  must  not 
only  involve  a  federal  question,  but  it  must  be  a  suit  of  which 
the  court  can  take  jurisdiction.  If,  for  instance,  it  is  a  suit  to 
enjoin  a  tax,  and  of  such  a  character  that  an  equity  court  has  no 
jurisdiction,  then  the  federal  equity  court  cannot  take  jurisdic- 
tion.58 

A  very  common  character  of  controversy  is  that  class  in 
which  state  legislation  is  alleged  to  violate  the  obligation  of 
contracts.  This  is  undoubtedly  a  federal  question.  There  are 
numerous  illustrations  of  this  question  in  cases  which  have  gone 
to  the  Supreme  Court,  and  cases  involving  the  right  of  cities, 
after  having  given  one  waterworks  company  or  gas  company 
the  right  to  supply  them  with  water,  to  give  the  same  right  to 
subsequent  companies,  or  to  undertake  the  supply  themselves.56 

Another  instance  is  where  it  is  claimed  that  subsequent  leg- 
islation infringes  an  exemption  from  taxation  conferred  by  a 
charter.67 

The  question  what  effect  a  federal  judgment  has  as  a  lien 
by  virtue  of  state  or  federal  statutes,  when  such  judgment  is 
a  necessary  link  in  a  chain  of  title,  is  a  federal  question.58 

But  the  mere  fact  that  suit  is  brought  upon  a  judgment  of 
a  federal  court  does  not  make  it  a  federal  question.59 

Many  cases  involving  federal  questions  arise  out  of  the  fed- 
eral control  or  influence  over  navigable  waters.     The  question 

644,  43  L.  Ed.  936;  West  v.  Louisiana,  194  U.  S.  258,  24  Sup.  Ct.  650, 
48  L.  Ed.  965. 

6  6  Indiana  Mfg.  Co.  v.  Koehne,  188  U.  S.  681,  23  Sup.  Ct.  452,  47 
L.  Ed.  651. 

es  Hamilton  Gaslight  &  Coke  Co.  v.  Hamilton,  146  U.  S.  258,  13 
Sup.  Ct.  90,  36  L.  Ed.  963;  Vicksburg  Waterworks  Co.  v.  Vicksburg, 
185  TJ.  S.  65,  22  Sup.  Ct.  585,  46  L.  Ed.  808;  St.  Tammany  Water- 
works Co.  v.  Waterworks  Co.,  120  TJ.  S.  64,  7  Sup.  Ct.  405,  30  L.  Ed. 
563. 

67  Illinois  Cent.  R.  Co.  v.  Adams,  180  U.  S.  28,  21  Sup.  Ct.  251,  45 
L.  Ed.  410. 

es  Cooke  v.  Avery,  147  TJ.  S.  375,  13  Sup.  Ct.  340,  37  L.  Ed.  209. 

6»  Provident  Sav.  Life  Assur.  Soc.  v.  Ford,  114  TJ.  S.  635,  5  Sup. 
Ct  1104,  29  L.  Ed.  261. 


§  97)  THE    CIVIL   JURISDICTION.  207 

whether  certain  structures  are  obstructions  to  navigation  in 
waters  claimed  to  be  so  navigable  as  to  fall  under  the  jurisdic- 
tion of  the  United  States,  and  the  question  as  to  the  right  to 
erect  a  dock  claimed  by  virtue  of  an  act  of  Congress,  are  federal 
questions.60 

Suits  based  upon  the  interstate  commerce  act,  or  the  com- 
mercial clause  of  the  Constitution,  involve  federal  questions.61 

National  Banks. 

It  has  been  stated  above  that  suits  against  corporations  organ- 
ized under  acts  of  Congress  per  se  involve  federal  questions. 
Independent  of  statute,  this  would  be  true  as  to  suits  against 
national  banks,  but  Congress  has  seen  fit  to  provide  expressly 
that  the  federal  courts  should  not  have  jurisdiction  in  suits 
against  national  banks  under  any  other  circumstances  than 
such  as  they  would  have  in  cases  against  individual  citizens  of 
the  same  state.62 

Under  this,  the  mere  fact  that  the  suit  is  against  a  national 
bank  does  not  give  jurisdiction.  But  if  the  question  raised  in 
the  suit  is  such  as  would  constitute  a  federal  question  inde- 
pendent of  the  mere  fact  that  the  defendant  is  a  national  bank, 
the  court  would  have  jurisdiction.  For  instance,  the  question 
whether  a  national  bank  which  had  acquired  stock  in  a  state 
bank,  and  was  sued  as  a  stockholder,  had  a  right  to  acquire  such 
stock,  or  whether  it  was  acquired  in  the  regular  course  of 
business,  constitutes  a  federal  question,  and  gives  jurisdiction.63 

On  the  other  hand,  where  a  stockholder  of  a  national  bank 
had  sold  his  stock,  and  the  purchaser  had  failed  to  transfer  it, 
in  consequence  of  which  the  vendor  remained  as  a  stockholder 
on  the  books  of  the  bank,  and  was  sued  after  the  failure  of  the 

60  U.  S.  v.  Boom  Co.,  176  U.  S.  211,  20  Sup.  Ct.  343,  44  L.  Ed.  437; 
Cummings  v.  Chicago,  188  U.  S.  410,  23  Sup.  Ct.  472,  47  L.  Ed.  525. 

ei  Ex  parte  Lennon,  16G  U.  S.  548,  17  Sup.  Ct.  658,  41  L.  Ed.  1110. 

62  Act  Aug.  13,  1888,  c.  866,  25  Stat.  436  [1  U.  S.  Conip.  St.  1901,  p. 
514];  CONTINENTAL  NAT.  BANK  V.  BUFORD,  191  U.  S.  119,  24 
Sup.  Ct.  54,  48  L.  Ed.  119. 

es  California  Nat.  Bank  v.  Kennedy,  167  U.  S.  362,  17  Sup.  Ct.  831, 
42  L.  Ed.  198. 


208  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  10 

bank  for  his  stock  assessment,  a  suit  by  him  against  the  pur- 
chaser for  failing  to  transfer  did  not  involve  a  federal  ques- 
tion.6* 

A  suit  based  on  the  refusal  of  election  officers  to  receive  a 
vote  at  a  congressional  election  is  essentially  a  suit  arising  un- 
der the  federal  Constitution,  of  which  the  court  has  jurisdiction, 
even  though  it  may  subsequently  decide  that  there  is  no  merit 
in  the  contention.65 

It  is  not  enough,  however,  in  order  to  confer  a  federal  ques- 
tion, that  some  act  of  Congress  or  title  claimed  under  the 
United  States  may  be  incidentally  involved.  The  case  must 
turn  necessarily  upon  the  construction  of  a  federal  question. 
This  is  well  illustrated  by  controversies  arising  out  of  patents. 
If  the  jurisdiction  is  invoked  on  the  ground  of  an  infringement, 
then  a  federal  question  is  involved ;  but  if,  on  the  other  hand, 
the  controversy  is  simply  over  contracts  arising  out  of  grants 
of  the  right  to  sell  patents,  and  turns  upon  the  construction  of 
these  contracts  between  the  parties,  a  federal  question  is  not 
involved,  even  though  the  subject  of  litigation  is  a  patent.66 

«*  Le  Sassier  v.  Kennedy,  123  U.  S.  521,  8  Sup.  Ct.  244,  31  L.  Ed. 
262;   Ex  parte  Jones,  164  U.  S.  691,  17  Sup.  Ct.  222,  41  L.  Ed.  601. 

es  Swafford  v.  Templeton,  185  U.  S.  487,  22  Sup.  Ct.  783,  46  L.  Ed.. 
1005.  It  is  interesting  to  compare  this  case  with  the  case  of  Ex- 
celsior Wooden  Pipe  Co.  v.  Bridge  Co.,  185  TJ.  S.  282,  22  Sup.  Ct. 
081,  46  L.  Ed.  910,  in  order  to  ascertain  how  far  the  jurisdiction  of 
the  court  is  defeated  hy  the  defendant's  pleading.  The  true  distinc- 
tion appears  to  be  that  if  the  claim  of  the  plaintiff  is  bona  fide  and 
appears  clearly  upon  his  bill,  and  that  claim  is  not  formally  admit- 
ted  by  the  pleadings,  the  court  has  jurisdiction,  even  though  the  facts 
in  the  case,  on  the  plaintiff's  own  proof,  should  show  that  his  claim 
is  not  well  founded.  But  if  the  claim  as  set  up  by  him  is  formally 
admitted  on  the  pleadings,  then  there  is  no  controversy  between 
the  parties  involving  a  federal  question,  and  the  court  may  consider 
this  as  showing  a  want  of  federal  jurisdiction. 

66  Hartell  v.  Tilghman,  99  U.  S.  547,  25  L.  Ed.  357;  White  v.  Ran- 
kin, 144  U.  S.  62S.  12  Sup.  Ct.  768,  36  L.  Ed.  569;   Pratt  v.  Coke  Co., 

•  IT.  S.  2">.  18  Sup-  ('t.  "2.  42  L.  Efl.  4HS:  Excelsior  Wooden  Pipe 
Co.  v.  Bridge  Co.,  185  U.  S.  282,  22  Sup.  Ct.  6S1,  46  L.  Ed.  910. 


§  98)  THE    CIVIL   JURISDICTION.  209 

Nor  is  a  federal  question  involved  simply  from  the  fact  that 
suit  is  brought  against  a  receiver  appointed  by  a  federal  court. 
The  basis  of  the  suit  itself  must  involve  a  federal  question,  and 
the  mere  fact  that  a  federal  receiver  is  sued  is  not  sufficient 
to  give  jurisdiction.67 

Nor  is  it  sufficient  to  constitute  a  federal  question  that  the 
title  in  litigation  traces  back  to  the  United  States,  where  no 
question  of  the  effect  of  the  federal  link  in  the  title  is  involved, 
but  merely  conflicting  questions  of  title  between  diverse  claim- 
ants.88 


SAME-CONTROVERSIES    BETWEEN    CITIZENS    OF    DIF- 
FERENT STATES— NATURAL  PERSONS. 

98.  The  other  requisites  concurring,  the  jurisdiction  extends 
to  cases  involving  controversies  between  citizens  of 
different  states.  The  word  "citizen,"  in  this  connec- 
tion, is  not  used  in  the  political  sense  of  a  voter,  but  in 
the  sense  of  being  a  permanently  domiciled  member 
or  subject  of  a  state.  Citizenship  of  the  state  and  of 
the  United  States  must  both  concur. 

Iu  considering  what  is  meant  in  the  Constitution  and  stat- 
utes bv  "citizens  of  different  states,"  the  question  will  first  be 
discussed  as  to  natural  persons. 

The  word  "citizen"  is  not  used  in  this  connection  in  its 
political  sense,  or  in  reference  to  any  political  rights,  like  the 
right  to  vote.  It  is  used  in  the  sense  of  its  original  definition ; 
that  is,  as  an  integral  part  of  the  membership  of  a  state,  or  a 
subject  of  a  state.     It  means  those  who  have  a  permanent  domi- 

6T  Bausman  v.  Dixon,  173  U.  S.  113,  19  Sup.  Ct.  316,  43  L.  Ed.  633; 
Gablenian  v.  Railroad  Co.,  179  U.  S.  335,  21  Sup.  Ct.  171,  45  L.  Ed. 
220. 

es  St.  Paul  &  N.  P.  Ry.  Co.  v.  Railroad  Co.,  68  Fed.  2,  15  C.  C.  A. 
167 ;  Id.,  18  Sup.  Ct.  946,  42  L.  Ed.  1212 ;  De  Lamar's  Nevada  Gold 
Min.  Co.  v.  Nesbitt,  177  U.  S.  523,  20  Sup.  Ct.  715,  44  L.  Ed  872; 
Northern  Pae.  R.  Co.  v.  Soderberg,  188  U.  S.  526,  23  Sup.  Ct.  365,  47 
L.  Ed.  575. 

Hughes  Fed.Jttb. — 14 


210  CIRCUIT    COURT — ORIGINAL    JURISDICTION.  (Ch.  10 

cile  in  a  state,  and  not  those  who  may  merely  have  a  temporary 
residence  there.  The  distinction  between  "domicile"  and  "resi- 
dence" is  well  known  in  the  law.  The  meaning  of  "domicile" 
is  explained  in  the  case  of  Mitchell  v.  U.  S.69  It  is  defined 
as  a  "residence  at  a  particular  place,  accompanied  with  pos- 
itive or  presumptive  proof  of  an  intention  to  remain  there  for 
an  unlimited  time ;  and,  when  once  acquired,  it  is  presumed  to 
continue  until  positive  proof  of  change."  In  order  to  give 
jurisdiction  to  the  federal  courts  on  this  ground,  two  things 
must  concur:  The  parties  must  be  citizens  of  a  state, 
in  the  sense  of  being  regularly  domiciled  in  that  state, 
and  not  having  a  mere  temporary  residence  there ;  and  they 
must  also  be  citizens  of  the  United  States,  within  the  require- 
ments of  the  fourteenth  amendment,  which  provides  that  all 
persons  born  or  naturalized  in  the  United  States  are  citizens 
of  the  United  States  and  of  the  state  where  they  reside.  A 
party  may  be  a  citizen  of  the  United  States,  and  yet  the  federal 
courts  would  not  have  jurisdiction  on  the  ground  of  citizenship. 
For  instance,  a  person  having  his  permanent  abode  in  the  Dis- 
trict of  Columbia  is  a  citizen  of  the  United  States,  but  the 
federal  courts  have  no  jurisdiction  on  the  ground  of  citizenship 
where  he  is  on  one  side  of  a  controversy,  as  the  District  of 
Columbia  is  not  a  state.70 

On  the  same  principle,  a  party  regularly  domiciled  in  a  terri- 
tory is  a  citizen  of  the  United  States,  but  he  is  not  a  citizen  of 
a  state,  and  therefore  cannot  give  jurisdiction  to  the  federal 
courts.71 

On  the  other  hand,  a  party  may  be  regularly  domiciled  in  a 
state,  and  a  citizen  of  a  state  in  the  political  sense  of  the  word, 
and  yet  the  federal  courts  would  not  have  jurisdiction  unless  he 
is  also  a  citizen  of  the  United  States.     For  instance,  an  alien 


••  21  Wall.  350,  22  L.  Ed.  584. 

to  Barney  v.  Baltimore,  6  Wall.  280,  18  L.  Ed.  825;  Hooe  v. 
Jamieson,  166  U.  S.  395,  17  Sup.  Ct.  596,  41  L.  Ed.  1049. 

ti  City  of  New  Orleans  v.  Winter,  1  Wheat.  91,  4  L.  Ed.  44;  Wat- 
son v.  Bonflls,  116  Fed.  157,  53  C.  C.  A.  535. 


§  98)  THE    CIVIL    JURISDICTION.  211 

who  has  never  been  naturalized  cannot  be  a  proper  party  to  a 
suit  in  the  federal  courts  based  on  the  ground  of  diverse  citi- 
zenship, even  though  the  state  may  have  given  an  unnaturalized 
alien  the  right  to  vote.72 

That  citizenship  of  the  United  States  alone  is  not  sufficient 
to  confer  jurisdiction  is  well  settled.78 

Mere  residence  is  not  sufficient  to  confer  jurisdiction,  but 
domicile  is  required.74 

The  fact  that  citizenship,  in  this  connection,  does  not  mean 
political  citizenship  or  the  right  to  vote,  is  illustrated  by  the 
fact  that  even  women  who  have  no  right  to  vote  can  still  sue 
in  the  federal  courts  on  the  ground  of  diverse  citizenship,  and 
the  same  rule  applies  to  infants.76 

In  considering  the  question  of  domicile,  the  ordinary  rules 
of  law  in  reference  to  the  domicile  of  different  parties  apply. 
For  instance,  the  domicile  of  a  child  is  that  of  the  parent.78 

An  interesting  case  on  this  point  is  Lamar  v.  Micou,77  which 
holds  that  the  infant's  domicile  was  that  of  the  father  or  the 
widowed  mother,  but  did  not  change,  when  the  mother  remar- 
ried, to  the  domicile  of  the  second  husband,  nor  to  that  of  a 
guardian  at  a  mere  temporary  residence  of  the  child.  So,  too, 
the  domicile  of  the  wife  is  that  of  the  husband  where  they  are 
not  living  apart  under  a  legal  separation.78 

The  rules  of  evidence  in  relation  to  proof  of  domicile  are 
peculiar.     It  may  often  be  proved  by  declarations,  provided 

T2  Poppenhauser  v.  Comb  Co.  (C.  C.)  14  Fed.  707;  Lanz  v.  Randall, 
Fed.  Cas.  No.  8,080. 

7  3  Nichols  v.  Nichols  (C.  C.)  92  Fed.  1. 

t*  Wolfe  v.  Insurance  Co.,  148  U.  S.  3S9,  13  Sup.  Ct.  602,  37  L.  Ed. 
493;  Neel  v.  Pennsylvania  Co.,  157  U.  S.  153,  15  Sup.  Ct.  589,  39  L. 
Ed.  654;   Collins  v.  Ashland  (D.  C.)  112  Fed.  175. 

7  5  Minor  v.  Happersett,  21  Wall.  162,  169,  22  L.  Ed.  627;  Blumen- 
thal  v.  Craig,  81  Fed.  320,  26  C.  C.  A.  427. 

7  6  Dresser  v.  Illuminating  Co.  (C.  C.)  49  Fed.  257. 

7  7  LAMAR  v.  MICOU,  112  TJ.  S.  452,  5  Sup.  Ct.  221,  2S  L.  Ed.  751. 

7  8  Nichols  v.  Nichols  (C.  C.)  92  Fed.  L 


212  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  10 

the  court  is  satisfied  that  the  declaration  was  not  made  fur 
the  purpose  of  manufacturing  evidence  on  the  subject.79 

A  domicile  may  be  actually  acquired,  and,  even  if  acquired 
for  the  purpose  of  enabling  the  party  to  sue  in  the  federal 
courts,  it  is  still  his  domicile,  and  entitles  him,  under  such  cir- 
cumstances, to  sue ;  but,  if  the  change  of  domicile  is  merely 
colorable,  the  court  will  dismiss  any  suit  of  its  own  motion.80 

Of  course,  a  state  cannot  sue  in  the  federal  courts  on  the 
ground  of  diverse  citizenship,  as  a  state  cannot,  in  the  nature 
of  things,  be  a  citizen  of  a  state.81 

In  considering  the  parties  for  the  purpose  of  jurisdiction, 
the  court  looks  at  the  character  of  the  party  on  the  record  who 
is  the  actual  dominus  litis,  not  at  mere  nominal  parties  or  par- 
ties beneficially  interested.  For  instance,  where  a  bond  is  made 
payable  to  a  state  or  marshal,  any  suit  brought  by  the  party 
interested  in  the  breach  of  the  bond  as  relator  is  governed  by 
his  citizenship,  and  not  by  the  citizenship  of  a  formal  payee, 
who  has  no  actual  interest  in  the  suit.82 

For  the  same  reason,  where  a  suit  is  brought  by  a  party  in  a 
representative  character,  his  citizenship,  and  not  that  of  the 
parties  for  whose  benefit  the  suit  is  really  brought,  is  the  test. 
An  illustration  of  this  is  a  suit  by  a  trustee,  in  which  case  his 
citizenship,  and  not  that  of  the  beneficiaries,  governs.83 

So,  in  a  suit  by  an  administrator,  his  citizenship,  and  not  that 
of  the  beneficiaries  in  the  estate,  is  the  test.8* 


to  Doyle  v.  Clark.  Fed.  Cas.  No.  4,053. 

so  Morris  v.  Gilmer,  129  U.  S.  315,  9  Sup.  Ct.  289,  32  L.  Ed.  690; 
Barney  v.  Baltimore,  6  Wall.  2S0,  IS  L.  Ed.  825. 

si  STONE  v.  SOUTH  CAROLINA,  117  U.  S.  430,  6  Sup.  Ct.  799,  29 
L.  Ed.  962 ;  Postal  Tel.  Cable  Co.  v.  Alabama,  155  U.  S.  482,  15  Sup. 
Ct.  192,  39  L.  Ed.  231. 

8  2  Indiana  v.  Glover,  155  U.  S.  513,  15  Sup.  Ct.  186,  39  L.  Ed.  243; 
Wade  v.  Wortsman  (C.  C.)  29  Fed.  754;  State  of  Maryland  v.  Bald- 
win, 112  U.  S.  490,  5  Sup.  Ct.  278,  28  L.  Ed.  S22. 

ss  Blumenthal  v.  Craig,  81  Fed.  320,  26  C.  C.  A.  427. 

e>  rincinnati,  H.  &  D.  R.  Co.  v.  Thiebaud,  114  Fed.  918,  52  C.  C. 
A.  53S. 


§  ,98)  THE    CIVIL   JURISDICTION.  213 

The  same  principle  applies  to  the  suit  of  a  guardian  for  the 
benefit  of  his  ward,  where  the  guardian  can  sue  in  his  own 
name.8' 

On  the  other  hand,  a  suit  by  a  minor  through  his  next  friend 
is  regulated  by  the  citizenship  of  the  minor,  as  a  next  friend  is 
strictly  hardly  a  party  to  the  suit  at  all.88 

Another  well-settled  principle  of  federal  jurisprudence  is 
that,  if  the  relation  of  the  parties  is  such  at  the  institution  of 
suit  as  to  give  the  court  jurisdiction,  the  substitution  of  new 
parties,  or  the  change  of  residence  of  the  old  parties,  will  not 
divest  a  jurisdiction  once  acquired.81 

8  6  Mexican  Cent.  R.  Co.  v.  Eckman,  187  TL  S.  429,  23  Sup.  Ct  211, 
47  L.  Ed.  245. 

««  Blumenthal  v.  Craig,  81  Fed.  320,  26  C.  C.  A.  427. 

87  Hardenbergh  v.  Ray,  151  U.  S.  112,  14  Sup.  Ct  305,  38  L.  Ed.  93; 
Collins  v.  Ashland  (D.  C.)  112  Fed.  175. 


214  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  11 


CHAPTER  XI. 

THE   CIRCUIT  COURT  (Continued)— ORIGINAL   JURISDICTION 

(Continued). 

99.     Same — Same — Corporations. 

100.  Same— Same— Plurality  of  Litigants. 

101.  Same — Controversies  between  Citizens  of  the  Same  State  Claim- 

ing Lands  under  Grants  of  Different  States. 

102.  Same — Controversies  between  Citizens  of  a  State  and  Foreign 

States,  Citizens,  or  Subjects. 

103.  Same — Venue  of  Actions. 

104.  Same — Same — Rule  When  Litigants  are  Numerous. 

105.  Same — Same — Suits  against  Defendants  of  Different  Districts 

in  Same  State,  and  Suits  in  Rem. 

106.  Same — Jurisdiction  as  Affected  by  Assignment 

SAME— SAME— CORPORATIONS. 

99.  For  purposes  of  federal  jurisdiction  a  corporation  is  con- 
sidered a  citizen  of  the  state  which  gives  it  its  char- 
ter. 
Frequently  corporations  hold  legislative  power  from  more 
than  one  state.  In  such  case  a  mere  license  or  enabling 
act  does  not  make  it  a  corporation  of  the  second  state 
also. 

1.  How  Far  a  Citizen  of  the  State  Creating  It. 

At  the  time  of  the  adoption  of  the  federal  Constitution  the 
part  played  by  corporations  in  the  business  of  the  country 
was  slight.  It  is  a  matter  of  great  doubt  whether  the  trainers 
of  the  Constitution  had  them  in  mind  at  all.  Consequently, 
when  the  question  was  first  raised  whether  a  corporation  was  a 
citizen  in  the  sense  in  which  that  term  was  used  in  reference 
to  the  jurisdiction  of  the  federal  courts,  it  was  decided  that 
a  corporation  could  only  be  treated  as  a  citizen,  for  the  purposes 
of  jurisdiction,  in  case  all  the  corporators  composing  the  cor- 


§  99)  THE    CIVIL    JURISDICTION.  215 

poration  were  citizens  of  the  state  of  its  creation,  and  this  was 
a  matter  of  averment  and  proof  in  each  case.1 

This  remained  the  doctrine  for  a  great  many  years,  but  the 
increasing  importance  of  corporations  rendered  it  necessary 
for  the  court  to  consider  the  question  more  thoroughly,  and 
consequently,  in  the  case  of  Louisville,  C.  &  C.  R.  Co.  v.  Let- 
son,2  the  Supreme  Court  based  the  jurisdiction  of  the  federal 
courts  over  corporations  on  the  theory  that  the  corporation  was 
itself  an  inhabitant  of  the  state  of  its  creation,  contracting  in 
its  own  name,  and  having  a  legal  existence  independent  of  its 
membership. 

It  has  been  shown  in  a  previous  chapter  that  the  word  "citi- 
zen" is  not  used  in  its  political  sense,  but  means  a  person  with 
a  permanent  domicile,  or  a  subject.  Hence,  when  this  last  test 
was  laid  down  by  the  court,  it  came  pretty  close  to  the  doctrine 
which  had  been  applied  in  the  case  of  individuals.  But  not 
content  with  this,  the  court  did  not  take  long  to  go  a  step 
further  to  the  final  conclusion  that  after  all,  when  a  corporation 
is  chartered  by  a  state,  there  is  a  conclusive  presumption  that  its 
corporators  are  all  citizens  of  the  same  state;  that,  properly 
speaking,  the  individual  stockholders  are  not  parties  at  all, 
but  that  the  corporation  stands  in  the  position  of  their  repre- 
sentative or  trustee ;  and  hence  an  averment  that  a  corporation 
is  incorporated  under  the  laws  of  a  certain  state  shows  that  'It 
has  a  domicile  in  or  is  a  subject  or  citizen  of  that  state.3 

The  test  laid  down  in  this  latter  case  is  that,  in  order  to 
make  a  corporation  a  citizen  in  the  spirit  and  letter  of  the 
Constitution,  it  must  be  created  out  of  natural  persons  whose 
citizenship  of  the  state  creating  it  could  be  imputed  to  the 
corporation  itself.     Hence  it  follows,  from  the  ground  on  which 

i  Bank  of  U.  S.  v.  Deveaux,  5  Cranch,  61,  3  L.  Ed.  38;  Commercial 
&  R.  Bank  of  Vicksburg  v.  Slocomb,  14  Pet.  60,  10  L.  Ed.  354. 

2  2  How.  497,  11  L.  Ed.  353. 

s  Marshall  v.  Railroad  Co.,  16  How.  314,  14  L.  Ed.  953;  ST.  LOUIS 
&  S.  F.  R.  CO.  v.  JAMES,  161  U.  S.  545,  16  Sup.  Ct.  621,  40  L.  Ed. 
802. 


21G  CIRCUIT    COURT — ORIGINAL    JURISDICTION.  (Ch.  11 

these  decisions  have  rested,  that  the  allegation  that  a  corpora- 
tion is  a  citizen  of  a  state  is  meaningless,  but  the  allegation 
should  be  that  it  is  a  corporation  organized  under  the  laws  of 
that  state.4 

The  principle  of  this  line  of  decisions  applies  as  well  to  for- 
eign corporations  as  to  those  organized  under  the  laws  of  a 
state.  They,  too,  are  conclusively  presumed  to  be  composed 
of  citizens  or  subjects  of  the  foreign  government  creating 
them.6 

Under  the  acts  of  July  12,  1882,  March  3,  1887,  and  August 
13,  1888,*  a  national  bank,  for  purposes  of  jurisdiction,  is  treat- 
ed as  a  corporation  of  the  state  in  which  it  is  located.8 

But  these  principles  apply  only  to  corporations.  They  do  not 
apply  to  unincorporated  associations,  or  even  to  joint-stock 
companies  which  are  not  so  organized  as  to  amount  to  corpora- 
tions.7 Nor  do  they  apply  to  limited  partnership  associations 
so  long  as  they  are  not  imbued  with  the  character  of  corpora- 
tions.8 

Status  of  Corporations  under  Legislation  of  More  than  One 
State. 
This  is  one  of  the  most  difficult  questions  in  federal  juris- 
prudence. Its  difficulty  arises  from  the  fact  that  whether  the 
corporation  is  a  corporation  of  one  state  or  the  other,  or  of  both 
states  granting  them  privileges,  is  a  question  of  legislative 
intent,  dependent  largely  upon  the  statute  to  be  passed  upon  in 

*  Baltimore  &  O.  R.  Co.  v.  McLaughlin,  73  Fed.  519,  19  C.  C.  A. 
551. 

s  National  S.  S.  Co.  v.  Tugman,  106  TJ.  S.  118,  1  Sup.  Ct.  58,  27  L. 
Ed.  87. 

*  U.  S.  Comp.  St.  1901,  pp.  3457,  514. 

*  Petrie  v.  Bank,  142  U.  S.  644,  12  Sup.  Ct  325,  35  L.  Ed.  1144; 
Ex  parte  Jones,  164  TJ.  S.  691,  17  Sup.  Ct.  222,  41  L.  Ed.  601;  CON- 
TINENTAL NAT.  BANK  OF  MEMPHIS  V.  BUFORD,  191  U.  S. 
119,  24  Sup.  Ct.  54,  4S  L.  Ed.  119. 

7  Chapman  v.  Barney,  129  TJ.  S.  677.  9  Sup.  Ct.  426,  32  L.  Ed.  800. 
s  Great  Southern  Fireproof  Hotel  Co.  v.  Jones,  177  TJ.  S.  449,  20 
Sup.  Ct.  690,  44  L.  Ed.  842. 


§  99)  THE    CIVIL    JURISDICTION.  217 

each  case.  There  are,  however,  certain  general  principles 
which  at  least  aid  in  considering  any  special  case. 

It  is  well  settled  that  the  mere  grant  to  a  corporation  al- 
ready organized  under  the  laws  of  one  state  of  a  privilege  or 
license  by  another  state  does  not  constitute  it  a  corporation  of 
the  second  state.  Even  where  the  legislation  of  the  second 
state  goes  so  far  as  to  require  the  corporation  to  file  its  charter 
in  some  office  of  the  second  state  and  agree  to  be  considered  a 
domestic  corporation  of  that  state,  it  still  remains  a  corporation 
of  the  first  state,  and  the  legislation  of  the  second  state  is  not 
construed  as  amounting  to  incorporation.8 

So,  too,  where  the  second  state  recites  the  charter  granted 
by  the  first  state,  and  goes  on  to  give  the  same  powers  and  im- 
pose the  same  duties,  that  is  construed  as  a  mere  license,  and 
not  as  creating  a  new  corporation.10 

In  order  for  the  legislation  of  the  second  state  to  constitute 
a  new  corporation  of  that  state,  the  language  used  must  go  so 
far  as  to  imply  actual  creation,  not  a  mere  recognition  of  a 
previous  creation.11 

On  the  other  hand,  when  the  intent  of  the  second  state  to 
create  a  new  corporation  is  clear,  the  effect  is,,  in  contemplation 
of  law,  that  there  are  two  corporations.  There  is,  first,  the 
corporation  of  the  original  state,  which  owes  its  existence  to 
that  state,  and  cannot  be  regenerated  by  another  state;  and 
there  is,  second,  the  new  corporation  of  the  second  state,  owing 
its  existence  and  allegiance  to  the  second  state.  These  two 
corporations  may  in  name  be  one,  may  have  the  same  stock- 
holders, own  the  same  property,  and  even  be  operated  as  a  unit, 

9  ST.  LOUIS  &  S.  F.  R.  CO.  v.  JAMES,  161  U.  S.  545,  16  Sup.  Ct. 
621,  40  L.  Ed.  802;  SOUTHERN  R.  CO.  v.  ALLISON,  190  U.  S.  326. 
23  Sup.  Ct.  713,  47  L.  Ed.  1078. 

io  Baltimore  &  O.  R.  Co.  v.  Harris,  12  Wall.  65,  20  L.  Ed.  354; 
Baltimore  &  O.  R.  Co.  v.  Koontz,  104  U.  S.  5,  26  L.  Ed.  643. 

ii  Pennsylvania  R.  Co.  v.  Railroad  Co.,  118  U.  S.  290,  6  Sup.  Ct. 
1094,  30  L.  Ed.  83. 


218  CIRCUIT    COURT — ORIGINAL   JURISDICTION.         (Cll.  H 

but  they  still  retain  their  character  as  distinctive  and  separate 
corporations.12 

The  character  of  legislation  which  will  constitute  an  addition- 
al corporation  is  well  illustrated  by  the  case  of  Memphis  &  C. 
R.  Co.  v.  Alabama.18  In  this  case  a  railroad  had  already  been 
chartered  in  Tennessee,  but  by  an  act  of  the  Legislature  of 
Alabama  a  corporation  under  the  same  name  was  authorized 
to  take  subscriptions  to  capital  stock  in  Alabama,  required  to 
have  a  place  for  the  stockholders  to  meet  in  Alabama,  and  to 
do  various  other  things  consistent  only  with  the  idea  of  its  being 
an  Alabama  corporation.  When  it  was  sued  in  Alabama  on  a 
tax  question  arising  under  the  laws  of  Alabama,  the  Supreme 
Court  held  that  the  intent  of  the  Legislature  of  Alabama  to 
make  a  separate  corporation  was  clear,  and  that  as  to  such  a  pro- 
cedure it  must  necessarily  be  considered  a  corporation  of  Ala- 
bama, and  hence  could  not  remove  the  case  into  the  federal 
courts  on  the  ground  of  its  being  a  nonresident. 

Where  there  is  double  legislation  by  two  states,  even  though 
the  legislation  of  the  second  state  may  amount  to  incorporation, 
the  original  corporation  organized  by  the  first  state  still  re- 
mains.14 

Difficult  questions  under  this  branch  of  jurisdiction  arise 
when  corporations  of  different  states  are  consolidated.  In  such 
case  each  corporation,  as  a  rule,  retains  its  original  citizen- 
ship, and,  when  sued,  the  corporation  is  supposed  to  be  a  cor- 
poration of  the  state  where  it  was  sued,  and  hence  could  not  be 
sued  by  a  citizen  of  that  state.15  But  when  a  new  corporation 
is  organized,  and  the  old  corporations,  under  a  consolidation 
agreement,  convey  their  properties  to  the  new  corporation  and 

12  Ohio  &  M.  R.  Co.  v.  Wheeler,  1  Black,  286,  17  L.  Ed.  130. 

is  107  U.  S.  581,  2  Sup.  Ct.  432,  27  L.  Ed.  518. 

i*  Louisville,  N.  A.  &  C.  R.  Co.  v.  Trust  Co.,  174  TJ.  S.  552,  19 
Sup.  Ct.  817,  43  L.  Ed.  1081. 

is  Baldwin  v.  Railroad  Co.  (C.  C.)  86  Fed.  167;  Smith  v.  Railroad 
Co.  (C.  C.)  96  Fed.  504. 


§  99)  THE    CIVIL   JURISDICTION.  219 

wind  up,  then  the  new  corporation  is  treated  as  a  citizen  of  the 
state  which  organizes  it.16 

When  a  corporation  acting  under  the  laws  of  two  states 
brings  a  suit,  the  question  as  to  its  citizenship  depends  on  the 
question  which  of  the  original  corporations  is  actually  suing; 
for  if,  in  contemplation  of  law,  there  are  still  two  separate  cor- 
porations, and  the  corporation  first  organized  remains  a  cor- 
poration of  the  original  state  and  loses  no  rights  by  going  into 
another  state,  then,  clearly,  in  such  case,  it  may  be  the  original 
corporation  which  is  suing,  and  not  the  corporation  of  the  sec- 
ond state.     This  doctrine  is  illustrated  by  comparing  the  two 
cases  of  Ohio  &  M.  R.  Co.  v.  Wheeler  17  and  Nashua  &  L.  R. 
Corp.  v.  Boston  &  L.  R.  Corp.18     In  the  first  a  corporation  de- 
scribing itself  as  created  by  the  laws  of  the  states  of  Indiana 
and  Ohio,  and  having  its  principal  place  of  business  in  Ohio, 
and  a  citizen  of  Ohio,  sued  a  citizen  of  Indiana  in  the  Indiana 
federal  court.     The  Supreme  Court  held,  on  this  allegation  of 
the  pleadings,  that  it  was  not  a  single  corporation  under  the 
joint  laws  of  Ohio  and  Indiana,  but  that  there  were,  in  con- 
templation of  law,  two  separate  corporations,  one  conclusively 
presumed  to  be  composed  of  citizens  of  the  state  of  Ohio,  and 
the  other  conclusively  presumed  to  be  composed  of  citizens  of 
the  state  of  Indiana.      Hence  it  was  the  same  thing  as  if  a  citizen 
of  Ohio  and  a  citizen  of  Indiana  sued  a  citizen  of  Indiana  in 
the  federal  courts,  and  thus,  as  citizens  of  Indiana  were  on  two 
different  sides  of  the  controversy,  it  was  not  a  case  of  which 
the  court  had  jurisdiction.     On  the  other  hand,  in  the  second 
case,  the  Nashua  Corporation,  alleging  itself  to  be  a  corporation 
of  the  state  of  New  Hampshire,  sued  a  corporation  of  the  state 
of  Massachusetts.     It  appeared   from  an  examination  of  the 
legislation  of  the  two  states  that  a  corporation  had  been  char- 
tered by  the  state  of  New  Hampshire  composed  of  seven  cor- 
porators, and  subsequently  a  corporation  of  the  same  name  by 

10  Westheider  v.  Railroad  Co.  (C.  C.)  115  Fed.  840. 

it  1  Black,  286,  17  L.  Ed.  130. 

is  13G  U.  S.  356,  10  Sup.  Ct.  1004,  34  L.  Ed.  363. 


220  CIRCUIT    COURT ORIGINAL    JURISDICTION.  (Ch.  11 

the  state  of  Massachusetts  composed  of  three  of  these  same 
corporators,  and  that  by  subsequent  legislation  the  stockholders 
and  property  of  the  two  corporations  were  blended  into  one 
for  all  practical  operating  purposes.  The  Supreme  Court  held, 
however,  that  it  had  to  consider  that  it  was  a  New  Hampshire 
corporation  which  was  suing,  and  not  the  Massachusetts  corpo- 
ration, and  hence  that  the  federal  court  for  the  district  of  Mas- 
sachusetts had  jurisdiction. 

SAME— SAME— PLURALITY  OF  LITIGANTS. 

100.  In  the  case  of  more  than  one  plaintiff  or  defendant,  the 
federal  jurisdiction  cannot,  be  acquired  by  diverse 
citizenship  when  any  one  or  more  of  the  parties  on 
either  side  is  a  citizen  of  the  same  state  as  any  one  or 
more  on  the  other  side;  but  only  a  party  can  defeat 
the  jurisdiction  who  is  an  indispensable  party  to  the 
suit,  and  the  omission  of  parties  not  indispensable  is 
authorized  by  statute  in  aid  of  the  federal  jurisdiction. 

Jurisdiction  as  Affected  by  the  Number  of  Litigants. 

Heretofore  the  discussion  has  been  on  the  theory  that  there 
is  but  one  party  on  each  side  of  the  litigation.  A  much  more 
numerous  class  is  where  there  is  more  than  one  litigant  on  each 
side.  In  this  case  it  is  well  established  as  a  doctrine  of  the 
federal  courts  that  the  terms  "plaintiff"  and  "defendant"  are 
used  collectively,  and  mean  that  all  the  plaintiffs  must  be  capa- 
ble of  suing  all  the  defendants ;  that  is,  that  all  the  parties  on 
each  side  of  the  litigation  must  be  of  different  citizenship. 
Hence  a  citizen  of  New  York  and  a  citizen  of  Massachusetts 
cannot  sue  a  citizen  of  Massachusetts  in  the  federal  courts,  as 
that  would  not  be  a  controversy  between  citizens  of  different 
states.19 

i»  Strawbridge  v.  Curtiss,  3  Cranch,  267,  2  L.  Ed.  435;  Peninsular 
Iron  Co.  v.  Stone,  121  U.  S.  631,  7  Sup.  Ct.  1010,  30  L.  Ed.  1030; 
FLORIDA  CENT.  &  P.  R.  CO.  v.  BELL,  176  U.  S.  321,  20  Sup.  Ct 
399,  44  L.  Ed.  486. 


§  100)  THE    CIVIL   JURISDICTION.  221 

The  jurisdiction,  however,  depends  only  upon  those  who  are 
indispensable  as  parties,  and  in  order  to  obviate,  as  far  as  possi- 
ble, the  inconvenience  of  having  the  jurisdiction  defeated,  sec- 
tion 737  of  the  Revised  St?tutes  20  reads  as  follows: 

"When  there  are  several  defendants  in  any  suit  at  law  or  in 
equity,  and  one  or  more  of  them  are  neither  inhabitants  of  nor 
found  within  the  district  in  which  the  suit  is  brought,  and  do 
not  voluntarily  appear,  the  court  may  entertain  jurisdiction, 
and  proceed  to  the  trial  and  adjudication  of  the  suit  between 
the  parties  who  are  properly  before  it;  but  the  judgment  or 
decree  rendered  therein  shall  not  conclude  or  prejudice  other 
parties  not  regularly  served  with  process  nor  voluntarily  ap- 
pearing to  answer;  and  nonjoinder  of  parties  who  are  not  in- 
habitants of  nor  found  within  the  district,  as  aforesaid,  shall 
not  constitute  matter  of  abatement  or  objection  to  the  suit." 

It  will  be  observed  that  this  authorizes  the  omission  of 
parties  only  on  the  ground  of  their  absence  from  the  juris- 
diction and  the  inability  to  reach  them  with  process,  but  not 
to  a  case  where  they  are  necessary  parties  and  in  reach  of 
process. 

For  instance,  in  the  case  of  Allnut  v.  Lancaster,21  there  were 
114  defendants,  all  in  reach  of  the  court's  process,  and  it  was 
held  that  in  such  case  it  was  necessary  to  make  them  parties. 
This  statute  applies  both  to  common  law  and  equity,  and  author- 
izes the  omission  even  of  those  who  would,  under  ordinary  rules 
of  practice,  be  considered  as  necessary  parties,  provided  the 
decree,  when  rendered,  does  not  so  change  the  state  of  affairs 
as  to  injuriously  affect  the  interests  of  the  absent  party. 
Hence,  in  the  case  of  Clearwater  v.  Meredith,22  it  was  held  that 
where  there  were  four  guarantors  in  a  contract,  one  of  whom 
was  out  of  the  jurisdiction,  the  other  three  could  be  sued  and 
the  absent  one  could  be  omitted,  as  in  such  case  the  judgment 

20  1  U.  S.  Comp.  St.  1901,  p.  587. 

si  (C.  C.)  76  Fed.  131.     See,  also,  Shearson  v.  Littleton  (C.  C.)  105 
Fed.  533 ;  Reese  v.  Zinn  (C.  C.)  103  Fed.  97. 
22  21  How.  489,  16  L.  Ed.  201. 


222  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Cll.  11 

would  not  bind  him,  and  he  would  still  be  free  to  defend  just 
as  if  no  suit  had  ever  been  brought  against  the  others.  So, 
in  Inbusch  v.  Farwell,23  a  suit  against  the  administrator  of 
one  partner  and  two  sureties  on  a  bond  signed  by  them,  and 
also  by  two  other  partners,  was  sustained,  the  other  partner 
being  inaccessible.  But  where  the  omitted  parties  are  what 
may  be  termed  indispensable  parties,  being  so  necessary  that 
a  decree  without  their  presence  would  prejudice  their  rights 
and  leave  the  case  in  a  shape  contrary  to  equity  and  good  con- 
science, the  statute  does  not  apply,  and  the  jurisdiction  of  the 
court  would  not  attach.24 

In  addition  to  the  above  statute,  the  forty-seventh  equity  rule 
provides  as  follows: 

"In  all  cases  where  it  shall  appear  to  the  court  that  persons, 
who  might  otherwise  be  deemed  necessary  or  proper  parties 
to  the  suit,  cannot  be  made  parties  by  reason  of  their  being 
out  of  the  jurisdiction  of  the  court,  or  incapable  otherwise  of 
being  made  parties,  or  because  their  joinder  would  oust  the 
jurisdiction  of  the  court  as  to  the  parties  before  the  court, 
the  court  may  in  their  discretion  proceed  in  the  case  without 
making  such  persons  parties;  and  in  such  cases  the  decree 
shall  be  without  prejudice  to  the  rights  of  the  absent  parties.'' 

This  rule,  however,  applies  only  to  equity,  and  not  to  com- 
mon-law cases.  It  is  broader  than  the  statute  above  quoted, 
because  it  applies  not  only  to  a  defect  of  parties,  due  to  their 
being  out  of  reach  of  process,  but  also  even  to  parties  within 
the  reach  of  process,  whose  joinder  would  oust  the  jurisdiction 
of  the  court.  Under  this  rule  and  the  above  statute,  parties 
in  the  federal  courts  need  not  be  so  numerous  as  in  the  ordinary 
chancery  courts,  and  many  who  would  ordinarily  be  made 
parties  are  not  necessarily  so  made  in  the  federal  courts.  The 
leading  case  on  this  subject  is  Shields  v.  Barrow.26     This  case 

23  Inbusch  v.  Farwell,  1  Black,  56G,  17  L.  Ed.  188. 
2*  Barney  v.  Baltimore,  6  Wall.  280,  18  L.  Ed.  825;    Ober  v.  Gal- 
lagher, 93  U.  S.  199,  23  L.  Ed.  829. 

2  6  SHIELDS  v.  BARROW,  17  How.  139,  15  L.  Ed.  158. 


§  100)  THE    CIVIL   JURISDICTION.  223 

classifies  parties  in  the  federal  courts  into  formal,  necessary, 
and  indispensable,  holding  that  only  the  latter  class  are  the 
ones  whose  absence  would  completely  defeat  the  jurisdiction. 
Even  parties  who  are  ordinarily  considered  necessary  parties 
would  not  defeat  the  jurisdiction  of  the  federal  court,  if  the 
court  can  proceed  without  prejudicing  their  rights  or  leaving 
the  record  at  final  decree  in  a  shape  contrary  to  equity  and  good 
conscience. 

Substantially  the  same  rule  is  laid  down  in  Williams  v.  Bank- 
head,26  where  the  court  says:  "The  general  rule  as  to  parties 
in  chancery  is,  that  all  ought  to  be  made  parties  who  are  inter- 
ested in  the  controversy,  in  order  that  there  may  be  an  end  of 
litigation.  But  there  are  qualifications  of  this  rule,  arising  out 
of  public  policy  and  the  necessities  of  particular  cases.  The 
true  distinction  appears  to  be  as  follows:  First.  Where  a 
person  will  be  directly  affected  by  a  decree,  he  is  an  indispen- 
sable party,  unless  the  parties  are  too  numerous  to  be  brought 
before  the  court,  when  the  case  is  subject  to  a  special  rule. 
Secondly.  Where  a  person  is  interested  in  the  controversy, 
but  will  not  be  directly  affected  by  a  decree  made  in  his  absence, 
he  is  not  an  indispensable  party,  but  he  should  be  made  a  party 
if  possible,  and  the  court  will  not  proceed  to  a  decree  without 
him  if  he  can  be  reached.  Thirdly.  Where  he  is  not  interest- 
ed in  the  controversy  between  the  immediate  litigants,  but  has 
an  interest  in  the  subject-matter  which  may  be  conveniently 
settled  in  the  suit  and  thereby  prevent  further  litigation,  he 
may  be  a  party,  or  not,  at  the  option  of  the  complainant." 

An  illustration  of  parties  who  are  merely  formal  in  the  sense 
of  this  statute  and  rule  is  given  by  the  case  of  Walden  v.  Skin- 
ner.27 In  this  case  the  executors  of  a  trustee,  who  were  joined 
for  the  mere  purpose  of  conveying  a  title,  but  against  whom 
no  personal  relief  was  prayed,  were  held  to  be  merely  formal. 

28  19  Wall.  563,  22  L.  Ed.  184.     See,  also,  Minnesota  v.  Securities 
Co.,  184  U.  S.  199,  22  Sup.  Ct.  308,  46  L.  Ed.  499. 
27  101  U.  S.  577,  25  L.  Ed.  963. 


224  CIRCUIT    COURT — ORIGINAL    JURISDICTION.  (Ch.  11 

So,  too,  in  Einstein  v.  Georgia  Southern  &  F.  R.  Co.,28  where 
two  of  three  trustees  sued  as  plaintiffs,  and  another  refused  to 
join  and  was  therefore  made  defendant,  he  was  held  to  be  only 
a  formal  party.  It  is  a  well-established  doctrine  of  the  federal 
courts  that  an  ordinary  trustee,  unless  the  instrument  creating 
him  is  very  restricted  in  conferring  powers  upon  him,  represents 
the  beneficiaries,  and  therefore  the  latter  are  not  necessary 
parties.29 

When  a  trustee  is  made  a  party  defendant  and  no  relief 
is  prayed  against  him,  he  would  not  defeat  the  jurisdiction ; 
but  where  there  are  charges  against  him,  and  therefore  relief 
is  prayed,  he  is  a  necessary  party,  and  would  defeat  the  juris- 
diction if  it  places  two  citizens  of  the  same  state  on  opposite 
sides.30  There  are,  however,  many  cases  where  parties  have 
been  held  indispensable  and  their  joinder  defeats  the  jurisdic- 
tion on  that  account.  In  Williams  v.  Bankhead  31  the  claimant 
of  a  fund  was  held  to  be  a  necessary  party.  So  in  Massachu- 
setts &  S.  Const.  Company  v.  Cane  Creek  Tp.,  which  was  a  suit 
to  recover  bonds  in  the  possession  of  a  third  party,  raising  cer- 
tain questions  as  to  the  contract  under  which  they  were  placed 
with  that  party,  it  was  held  that  the  custodian  of  the  bonds, 
though  only  a  stakeholder,  was  an  indispensable  party.32 

In  many  cases  a  jurisdiction  may  be  given  by  dismissing  the 
suit  as  to  parties  who  would  otherwise  defeat  it.38 

28  (C.  C.)  120  Fed.  1008. 

29  Kerrison  v.  Stewart,  93  U.  S.  155,  23  L.  Ed.  843;  Dodge  v.  Tul- 
Ieys,  144  U.  S.  451,  12  Sup.  Ct.  728,  36  I,.  Ed.  501. 

so  Post  v.  Buckley  (C.  C.)  119  Fed.  249. 

si  19  Wall.  563,  22  L.  Ed.  184. 

32  Massachusetts  &  S.  Const.  Co.  v.  Township,  155  U.  S.  283,  15 
Sup.  Ct.  91,  39  L.  Ed.  152;  New  Orleans  Waterworks  Co.  v.  New 
Orleans,  164  U.  S.  471,  17  Sup.  Ct.  161,  41  L.  Ed.  518. 

3  3  Horn  v.  Lockhart,  17  Wall.  570,  21  L.  Ed.  657;  Hooe  v.  Jamie- 
son,  166  TJ.  S.  395,  17  Sup.  Ct.  596,  41  L.  Ed.  1049;  Mason  v.  Dul- 
lagham,  82  Fed.  689,  27  C.  C.  A.  296;  Hopkins  v.  Stave  Co.,  83  Fed. 
912,  28  C.  C.  A.  99;  Delaware,  L.  &  W.  R.  Co.  v.  Frank  (C.  C.)  110 
Fed.  689. 


§  101)  THE    CIVIL   JURISDICTION.  225 

In  deciding  upon  the  jurisdiction,  the  court  does  not  consider 
itself  bound  by  the  arrangement  which  the  pleader  has  chosen 
to  give  the  parties  on  the  record.  It  will  arrange  them  accord- 
ing to  their  actual  interest,  and  then  decide  whether  the  juris- 
diction can  be  sustained.34 


SAME— CONTROVERSIES     BETWEEN     CITIZENS     OF    THE 

SAME  STATE  CLAIMING  LANDS  UNDER  GRANTS 

OF  DIFFERENT  STATES. 

101.  The  other  requisites  concurring,  the  federal  jurisdiction 
extends  to  cases  involving  controversies  between  citi- 
zens of  the  same  state  claiming  lands  under  grants  of 
different  states. 

The  reason  for  conferring  most  classes  of  jurisdiction  upon 
the  federal  courts  is  to  protect  those  whose  rights  depend  upon 
federal  statutes,  or  who  are  nonresidents,  from  local  influences 
and  prejudices.  Hence  it  is  as  important  to  confer  this  jurisdic- 
tion where  the  source  of  title  might  create  prejudice,  as  where 
friends  of  the  local  tribunal  or  juries  are  opposed  to  strangers. 

At  the  time  of  the  adoption  of  the  Constitution,  conflicting 
land  grants  among  the  several  states  were  quite  common.  The 
relative  boundaries  of  the  states  in  relation  to  each  other  were 
not  well  settled,  and  when  new  states  were  formed  there  were 
often  serious  difficulties  as  to  whether  the  grant  from  the  old 
state  or  the  grant  from  the  new  state  was  a  valid  one.  It  was 
soon  decided  that  the  federal  courts  had  jurisdiction  in  cases 
of  conflicting  grants  between  an  old  and  a  new  state,  although 
the  grant  of  the  old  state  was  made  before  the  new  state  was 
formed.  This  was  decided  in  the  case  of  conflicting  grants 
from  New  Hampshire  and  Vermont,  where  the  New  Hampshire 
grant  was  made  at  a  time  when  Vermont  was  still  a  part  of 

«*  Pacific  R.  Co.  of  Missouri  v.  Ketchum,  101  U.  S.  289,  25  L.  Ed. 
032;   First  Nat.  Bank  v.  Trust  Co.,  80  Fed.  569,  26  C.  C.  A.  1;   John- 
son v.  Ford  (C.  C.)  109  Fed.  501;    Joseph  Dry  Goods  Co.  v.  Hecht, 
120  Fed.  760,  57  C.  C.  A.  64. 
Hughes  Fed.Jub. — 15 


226  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Ch.  11 

New  Hampshire.86     This  source  of  litigation,  however,  has 
long  since  lost  its  importance. 

SAME— CONTROVERSIES  BETWEEN  CITIZENS   OF  A 

STATE  AND  FOREIGN  STATES,  CITIZENS,  OR 

SUBJECTS. 

102.  The  other  requisites  concurring,  the  federal  jurisdic- 
tion extends  to  cases  involving  controversies  between 
citizens  of  a  state  and  foreign  states,  citizens,  or  sub- 
jects. 

A  foreign  state  may  sue  in  the  courts  of  another  country, 
and  it  would  be  a  breach  of  international  courtesy  not  to  allow 
it  so  to  do.36 

An  illustration  of  a  suit  by  a  foreign  state  is  given  in  the 
case  of  Republic  of  Colombia  v.  Cauca  Co.,87  which  was  a  suit 
by  the  republic  of  Colombia  to  set  aside  an  award  of  arbitrators. 

Citizens  or  subjects  of  foreign  states  are  usually  designated 
in  the  cases  as  aliens,  although  that  is  not  the  language  of  the 
statute.  The  court  has  jurisdiction  of  a  suit  under  this  clause, 
although  the  alien  sued  or  suing  resides  in  the  United  States,88 
and  though  the  plaintiff  is  not  a  citizen  of  the  state  where  suit 
is  brought.38 

For  the  purposes  of  jurisdiction  under  this  clause,  a  foreigner 
remains  an  alien  until  he  is  completely  naturalized.  He  does 
not  become  a  citizen  by  taking  out  his  preliminary  natural- 
ization papers,  even  though  the  state  laws  give  such  a  party 
the  right  to  vote.*0 

8  6  Pawlet  v.  Clark,  9  Cranch,  292,  3  L.  Ed.  735. 

»«  The  Sapphire  v.  Napoleon  III,  11  Wall.  164,  20  L.  Ed.  127. 

8  7  Republic  of  Colombia  v.  Cauca  Co.  (C.  C.)  106  Fed.  337;  Id.,  113 
Fed.  1020,  51  C.  C.  A.  604;  Id.,  190  U.  S.  524,  23  Sup.  Ct  704,  47  L. 
Ed.  1159. 

as  Breedlove  v.  Nicolet,  7  Pet.  413,  8  L.  Ed.  731. 

89  BARROW  S.  S.  CO.  v.  KANE,  170  U.  S.  100,  18  Sup.  Ct.  526, 
42  L.  Ed.  964. 

40  City  of  Minneapolis  v.  Reum,  56  Fed.  576,  6  C.  C.  A.  31. 


§  102)  THE    CIVIL   JURISDICTION.  227 

On  the  other  hand,  a  citizen  of  the  United  States  does  not 
become  an  alien  by  a  mere  change  of  residence  from  the  United 
States.  It  must  appear  that  the  change  is  permanent,  and  that 
an  obligation  to  the  new  sovereign  has  been  distinctly  as- 
sumed.41 

If,  however,  a  female  citizen  of  the  United  States  marries 
a  Canadian  and  goes  with  him  to  his  permanent  home,  her 
national  character  is  determined  by  her  husband's  residence, 
and  she  becomes  a  subject  of  Great  Britain.42  On  the  other 
hand,  a  female  citizen  of  the  United  States,  by  marrying  a  resi- 
dent unnaturalized  alien,  does  not  thereby  become  an  alien 
herself,  they  continuing  to  reside  in  the  United  States.48 

The  court  has  also  decided  that  a  citizen  of  Cuba  after  the 
Spanish  War  is  a  citizen  of  a  foreign  state,  notwithstanding 
the  close  relations  between  that  country  and  the  United  States. 
She  is  Cuba  Libre.44 

In  view  of  the  constant  practice  of  nations  to  appoint  citi- 
zens of  other  nations  as  consuls,  there  is  no  presumption  that 
a  person  so  appointed  by  a  foreign  country  is  an  alien.45 

This  clause  of  the  statute  gives  jurisdiction  simply  between 
citizens  of  this  country  and  foreign  states,  citizens,  or  sub- 
jects. Hence  it  does  not  confer  jurisdiction  in  controversies 
between  citizens  of  two  foreign  states,46  nor  in  controversies 
between  citizens  of  foreign  states  and  citizens  of  the  District 
of  Columbia,  as  the  latter  is  not  a  state.47 

Pleadings  must  Show  the  Jurisdiction. 

The  courts  hold  that  an  averment  must  clearly  show  that  an 
alien  is  a  citizen  of  a  foreign  power.     In  the  case  of  Stuart  v. 

4i  Bishop  v.  Averill  (C.  C.)  76  Fed.  386;  Winans  v.  Attorney  Gen- 
eral [1904]  App.  Cas.  287. 

42  Jenns  v.  Landes  (C.  C.)  85  Fed.  801. 

4  3  Comitis  v.  Parkerson  (C.  C.)  56  Fed.  556,  22  L.  R.  A.  148. 

44  Betancourt  v.  Association  (C.  C.)  101  Fed.  305. 

4  5  Bors  v.  Preston,  111  U.  S.  252,  4  Sup.  Ct.  407,  28  L.  Ed.  419. 

46  Pooley  v.  Luco  (C.  C.)  72  Fed.  561. 

47  Land  Co.  of  New  Mexico  v.  Elkins  (C.  C.)  20  Fed.  545. 


228  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  11 

City  of  Easton  48  the  Supreme  Court  held  that  an  averment 
that  a  party  on  whom  jurisdiction  depended  was  a  citizen  of 
London,  England,  was  not  sufficient  for  the  purpose  of  juris- 
diction. The  opinion  is  very  short,  and  it  is  not  entirely  clear 
wherein  the  defect  consists.  Probably  it  was  that  the  aver- 
ment simply  showed  citizenship  of  the  city  of  London,  but  did 
not  show  necessarily  that  the  party  was  a  citizen  or  subject  of 
Great  Britain.  Soon  after  this  decision  Judge  Taft,  speaking 
for  the  circuit  court  of  appeals,  held,  in  the  case  of  Rondot  v. 
Rogers  Tp.,49  that  the  proper  averment  should  allege  not  only 
that  the  party  was  a  subject,  but  also  expressly  that  he  was  an 
alien,  although,  as  above  stated,  the  word  "alien"  is  not  used 
in  the  statute  at  all.  But  in  the  very  recent  case  of  Hennessy  v. 
Richardson  Drug  Co.50  the  Supreme  Court  held  that  it  was 
not  necessary  to  expressly  aver  the  alienage,  and  that  an 
averment  that  the  complainants  were  "all  of  Cognac  in  France, 
and  citizens  of  the  republic  of  France,"  was  sufficient  for  the 
purposes  of  jurisdiction.61 

SAME— VENUE  OF  ACTIONS. 

103.  Civil  suits  in  the  federal  courts  are  to  be  brought  in  the 
judicial  district  •whereof  the  defendant  is  an  inhabit- 
ant, except  that,  where  the  jurisdiction  is  founded 
only  on  the  fact  that  the  action  is  between  citizens  of 
different  states,  suit  may  be  brought  in  the  district 
of  the  residence  of  the  plaintiff,  if  the  defendant  be 
found  therein  and  served  with  process.  This  jurisdic- 
tion, however,  being  of  the  person  and  not  of  the  sub- 
ject-matter, any  defects  may  be  waived  by  the  appear- 
ance of  the  defendant. 

4  8  15G  U.  S.  46,  15  Sup.  Ct.  268,  39  L.  Ed.  341. 

49  79  Fed.  676,  25  C.  C.  A.  145. 

eo  HENNESSY  v.  DRUG  CO.,  189  U.  S.  25,  23  Sup.  Ct  532.  47  L. 
Ed.  697. 

bi  Jones  v.  Andrews,  10  Wall.  327.  19  L.  Ed.  935;  Southern  Pac. 
Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct.  44,  36  L.  Ed.  942. 


§  103)  THE    CIVIL   JURISDICTION.  220 

Jurisdiction  as  Affected  by  Place  of  Suit. 

The  statute  provides  that  "no  civil  suit  shall  be  brought  be- 
fore either  of  said  courts  against  any  person  by  any  original 
process  or  proceeding  in  any  other  district  than  that  whereof 
he  is  an  inhabitant ;  but  where  the  jurisdiction  is  founded  only 
on  the  fact  that  the  action  is  between  citizens  of  different  states 
suit  shall  be  brought  in  the  district  of  the  residence  of  either 
the  plaintiff  or  defendant."  The  acts  prior  to  the  act  quoted 
all  provided  that  the  suit  should  not  be  brought  "in  any  other 
district  than  that  whereof  he  is  an  inhabitant,  or  in  which  he 
shall  be  found  at  the  time  of  serving  the  writ."  This  last  act, 
by  omitting  the  right  to  sue  in  the  district  where  a  defendant 
may  be  found,  materially  changes  the  prior  acts,  and  renders 
unimportant  many  decisions  based  upon  them. 

In  considering  this  question  as  to  the  place  of  suit,  it  must 
first  be  observed  that  the  requirement  does  not  go  to  jurisdic- 
tion over  the  subject-matter,  but  merely  to  jurisdiction  over 
the  person,  and  hence  it  is  a  privilege  which  may  be  waived. 
If  the  controversy  is  between  citizens  of  different  states,  or 
involves  a  federal  question,  or  comes  within  any  other  of  the 
provisos  denning  the  jurisdiction  over  the  subject-matter,  the 
courts  have  jurisdiction  of  that  subject-matter,  even  though 
suit  may  be  brought  in  a  district  where  neither  the  plaintiff  nor 
the  defendant  resides ;  and  in  such  cases  a  general  appearance 
is  a  waiver  of  the  right  to  object  to  jurisdiction  over  the  per- 
son. Under  the  ordinary  rules  of  pleading,  a  special  appearance 
and  a  general  appearance  cannot  be  combined,  but  the  latter  is 
a  waiver  of  the  former ;  and  hence  a  demurrer  which  sets  up  as 
a  ground,  not  only  the  exemption  from  suit  in  that  special  dis- 
trict, but  other  grounds  going  to  the  merits,  such  as  want  of 
equity,  is  treated  as  a  general  appearance,  and  suit  may  be 
maintained.  Any  appearance,  consent,  or  plea  which  amounts 
to  a  general  appearance  is  undoubtedly  a  waiver  of  the  ques- 
tion of  jurisdiction.62 

52  ST.  LOUIS  &  S.  F.  R.  CO.  v.  McBRIDE,  141  U.  S.  127,  11  Sup. 
Ct.  982,  35  L.  Ed.  G59;   Central  Trust  Co.  v.  McGeorge,  151  U.  S.  129, 


230  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  11 

It  is  not  a  waiver  of  the  jurisdictional  privilege,  or  a  consent 
to  be  sued  in  a  certain  district,  for  a  defendant  corporation  to 
appoint  an  agent  on  whom  process  may  be  served,  as  required 
by  state  statute.  Even  though  the  corporation  actually  does 
business  there,  this  does  not  give  the  right  to  sue  it,  so  far  as 
the  jurisdiction  depends  upon  the  residence  of  the  defendant.03 

As  this  is  a  personal  privilege,  it  ought  to  be  very  clear  that 
only  the  party  can  plead  it  whose  residence  does  not  come  with- 
in its  requirements.64 

This  qualification  upon  the  right  to  sue  must  be  considered, 
first,  in  controversies  not  dependent  upon  diverse  citizenship, 
and,  second,  in  controversies  where  the  ground  of  jurisdiction 
is  diverse  citizenship. 

Rule  When  Jurisdiction  not  Dependent  on  Diverse  Citizenship. 

In  this  case  the  residence  or  inhabitancy  of  the  defendant 
alone  confers  jurisdiction.66  It  is  plain  from  the  language  of 
the  act  that  it  was  intended  to  refer  only  to  the  residence  of  citi- 
zens of  the  United  States,  and  hence  it  does  not  apply  to  an 
alien  defendant.  If  service  can  be  gotten  on  an  alien  corpora- 
tion, and  the  other  requisites  of  jurisdiction  concur,  the  court 
can  take  jurisdiction,  though  the  corporation  merely  does  busi- 
ness at  the  place  where  sued,  and  does  not,  as  in  the  nature  of 
things  it  cannot,  reside  there  or  become  an  inhabitant.66 

On  the  other  hand,  when  an  alien  is  a  plaintiff,  then  the 

14  Sup.  Ct.  286,  38  L.  Ed.  98;  Interior  Const.  &  Imp.  Co.  v.  Gibney, 
160  U.  S.  217,  16  Sup.  Ct.  272,  40  L.  Ed.  401;  Occidental  Consol. 
Min.  Co.  v.  Tunnel  Co.  (C.  C.)  120  Fed.  518. 

as  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct.  44,  36  L. 
Ed.  942;   Piatt  v.  Real  Estate  Co.  (C.  C.)  103  Fed.  705. 

e*  Citizens'  Bank  &  Trust  Co.  v.  Gold  Co.  (C.  C.)  106  Fed.  97; 
Central  Trust  Co.  v.  McGeorge,  151  U.  S.  129,  14  Sup.  Ct.  286,  38  L. 
Ed.  98. 

0  5  McCormick  Harvesting  Mach.  Co.  v.  Walthers,  134  U.  S.  41,  10 
Sup.  Ct.  485,  33  L.  Ed.  833;  In  re  Keasbey  &  Mattison  Co.,  160  U.  S. 
221,  16  Sup.  Ct.  273,  40  L.  Ed.  402. 

se  In  re  Hohorst,  150  U.  S.  653.  14  Sup.  Ct.  221,  37  L.  Ed.  1211; 
BARROW  S.  S.  CO.  v.  KANE,  170  U.  S.  100,  IS  Sup.  Ct.  526,  42  L. 
Ed.  964. 


§  103)  THE    CIVIL   JURISDICTION.  231 

jurisdiction  is  necessarily  governed  by  the  district  of  the  de- 
fendant American  citizen  or  corporation.57 

As  to  the  meaning  of  the  term  "resident  or  inhabitant,"  the 
Supreme  Court  has  settled  that.  As  there  were  many  states 
which  had  more  than  one  district,  and  it  would  be  incongruous 
to  say  that  a  litigant  was  a  citizen  of  a  district,  the  two  words 
are  practically  synonymous,  and  mean  the  regular  home  or 
domicile  of  the  party  in  question.58 

A  comparatively  recent  act  of  Congress  requires  surety  com- 
panies to  file  a  power  of  attorney  in  any  district  where  they  give 
a  bond,  before  they  can  give  bonds  to  the  United  States  or  in 
the  United  States  courts.58  Under  this  act  it  has  been  held 
that  it  constitutes  an  exceptional  case,  and  that  a  surety  com- 
pany may  be  sued  under  such  circumstances  wherever  it  gives 
a  bond.80 

When  Jurisdiction  Dependent  on  Diverse  Citizenship. 

In  this  case  the  suit  may  be  either  in  the  district  of  the  resi- 
dence of  the  plaintiff  or  of  the  defendant.  It  cannot,  however, 
be  in  the  residence  of  the  plaintiff  unless  legal  service  can  be 
secured  on  the  defendant.81  And,  in  the  case  of  a  corporation, 
legal  service  cannot  be  obtained  upon  it,  if  it  does  not  carry 
on  business  in  a  district,  by  merely  serving  one  of  its  officers 
who  happens  to  be  a  resident  there.62  Hence,  as  to  nonresi- 
dent defendants,  they  can  be  sued  in  the  district  of  the  plain- 

bt  Galveston,  H.  &  S.  A.  R.  Co.  v.  Gonzales,  151  U.  S.  496,  14  Sup. 
Ct.  401,  38  L.  Ed.  248. 

6  8  Shaw  v.  Mining  Co.,  145  U.  S.  444,  12  Sup.  Ct  935,  36  L.  Ed. 
768 ;  Galveston,  H.  &  S.  A.  R.  Co.  v.  Gonzales,  151  U.  S.  496,  14  Sup. 
Ct.  401,  38  L.  Ed.  248;  In  re  Keasbey  &  Mattison  Co.,  160  TJ.  S.  221, 
16  Sup.  Ct.  273,  40  L.  Ed.  402;  Freeman  v.  Surety  Co.  (C.  C.)  116 
Fed.  548. 

6»  28  Stat.  279  [TJ.  S.  Comp.  St.  1901,  p.  2315]. 

so  u.  S.  v.  Sheridan  (C.  C.)  119  Fed.  236. 

«i  Barnes  v.  Telegraph  Co.  (C.  C.)  120  Fed.  550;  Gale  v.  Associa- 
tion (C.  C.)  117  Fed.  732. 

«2  Conley  v.  Alkali  Works,  190  U.  S.  406,  23  Sup.  Ct.  728,  47  L. 
Ed.  1113. 


232  CIRCUIT    COURT — ORIGINAL    JURISDICTION.  (Ch.  11 

tiff ;  but  they  cannot  be  sued  in  a  district  where  neither  plain- 
tiff nor  defendant  resides,  even  though  they  carry  on  business 
there,  and  even  though  a  federal  question  or  other  requisite  of 
general  jurisdiction  may  exist. 


SAME— SAME— RULE  WHEN  LITIGANTS  ARE  NUMEROUS. 

104.  When  the  plaintiffs  or  defendants  are  numerous,  all  the 
plaintiffs  must  he  residents  of  the  district  where  the 
suit  is  hrought,  if  the  jurisdiction  is  hased  upon  the 
residence  of  the  plaintiffs;  or  all  the  defendants  mast 
he  residents  of  the  district  •where  the  suit  is  hrought, 
if  the  right  to  sue  is  hased  upon  the  residence  of  the 
defendants,  provided  that  no  party  not  indispensable 
■hall  defeat  the  jurisdiction. 

Following  analogies  laid  down  in  the  cases  regulating  the 
general  question  of  jurisdiction  between  citizens  of  different 
states,  it  is  now  well  settled  that,  when  the  plaintiffs  or  defend- 
ants are  numerous,  all  the  plaintiffs  must  be  residents  of  the 
district  where  the  suit  is  brought,  if  the  jurisdiction  is  based 
upon  the  residence  of  the  plaintiffs ;  or  all  the  defendants  must 
be  residents  of  the  district  where  the  suit  is  brought,  if  the  right 
to  sue  is  based  upon  the  residence  of  the  defendants.63 

Following  the  decisions  on  the  same  general  subject  of  juris- 
diction, it  is  also  well  settled  that  this  principle  applies  only  to 
those  who  are  indispensable  parties;  and  it  is  presumed  that, 
even  after  suit  brought,  jurisdiction  could  be  sustained  by  dis- 
missing as  to  any  parties  who  are  not  indispensable  and  who 
otherwise  might  defeat  jurisdiction.  It  is,  perhaps,  superfluous 
to  add  that  this  provision  as  to  the  place  where  suit  must  be 
brought  is  used  in  the  statute  merely  in  reference  to  the  or- 
dinary civil  jurisdiction  of  the  circuit  and  district  courts,  and 
hence  does  not  apply  to  other  classes  of  jurisdiction  conferred 
on  other  courts.     A  libel  in  personam  in  the  district  court  in  ad- 

«3  SMITH  v.  LYON,  133  U.  S.  315,  10  Sup.  Ct.  303,  33  L.  Ed.  635; 
Freeman  v.  Surety  Co.  (C.  C.)  116  Fed.  548. 


§  105)  THE    CIVIL   JURISDICTION.  233 

miralty  may  be  maintained  in  a  district  other  than  the  residence 
of  the  defendant,  and  the  ancient  process  of  the  admiralty  courts 
may  be  resorted  to  in  order  to  bring  the  defendant  into  court.84 


SAME-SAME— SUITS  AGAINST  DEFENDANTS  OF  DIFFER- 
ENT DISTRICTS  IN  SAME  STATE,  AND  SUITS 
IN  REM. 

105.  In  suits  not  of  a  local  nature,  when  there  are  two  or 
more  defendants  in  different  districts  of  the  same 
state,  the  suit  may  be  brought  in  any  district  in  which 
any  defendant  resides,  and  process  will  run  into  the 
other  districts  for  the  purpose  of  reaching  any  defend- 
ant in  the  district  in  which  he  resides. 

In  suits  of  a  local  nature,  where  the  defendant  resides  in  a 
different  district,  in  the  same  state,  from  that  in  which 
the  suit  is  brought,  the  plaintiff  may  have  original  and 
final  process  against  him  directed  to  the  marshal  of 
the  district  in  which  he  resides. 

Any  suit  of  a  local  nature,  at  law  or  in  equity,  where  the 
land  or  other  subject-matter  of  a  fixed  character  lies 
partly  in  one  district  and  partly  in  another,  within 
the  same  state,  may  be  brought  in  either  of  such  dis- 
tricts. 

In  the  case  of  suits  to  reach  property  of  absent  defendants 
in  any  district,  certain  proceedings  in  rem  are  pro- 
vided for,  enforceable  by  certain  prescribed  steps  in 
the  nature  of  an  order  of  publication.  These  are  main- 
ly suits  to  enforce  liens,  or  to  remove  clouds  on  titles. 

Section  740  of  the  Revised  Statutesf  provides  for  suits  not 
local  in  their  nature.     It  reads  as  follows: 

"When  a  state  contains  more  than  one  district,  every  suit 
not  of  a  local  nature,  in  the  circuit  or  district  courts  thereof, 
against  a  single  defendant,  inhabitant  of  such  state,  must  be 
brought  in  the  district  where  he  resides ;  but  if  there  are  two 

«*  In  re  Louisville  Underwriters,  134  U.  S.  488,  10  Sup.  Ct.  587,  33 
L.  Ed.  991. 

t  U.  S.  Comp.  St.  1901,  p.  587. 


234  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Ch.  11 

or  more  defendants,  residing  in  different  districts  of  the  state, 
it  may  be  brought  in  either  district,  and  a  duplicate  writ  may 
be  issued  against  the  defendants,  directed  to  the  marshal  of  any 
other  district  in  which  any  defendant  resides.  The  clerk  issu- 
ing the  duplicate  writ  shall  endorse  thereon  that  it  is  a  true 
copy  of  a  writ  sued  out  of  the  court  of  the  proper  district;  and 
such  original  and  duplicate  writs,  when  executed  and  returned 
into  the  office  from  which  they  issue,  shall  constitute  and  be 
proceeded  on  as  one  suit;  and  upon  any  judgment  or  decree 
rendered  therein,  execution  may  be  issued,  directed  to  the  mar- 
shal of  any  district  in  the  same  state." 

As  to  suits  of  a  local  nature,  section  741  provides  as  follows : 
"In  suits  of  a  local  nature,  where  the  defendant  resides  in 
a  different  district,  in  the  same  state,  from  that  in  which  the 
suit  is  brought,  the  plaintiff  may  have  original  and  final  process 
against  him,  directed  to  the  marshal  of  the  district  in  which  he 
resides." 

As  to  suits  of  a  local  nature,  where  the  property  lies  in 
more  than  one  district,  section  742  of  the  Revised  Statutes  pro- 
vides : 

"Any  suit  of  a  local  nature,  at  law  or  in  equity,  where  the 
land  or  other  subject-matter  of  a  fixed  character  lies  partly  in 
one  district  and  partly  in  another,  within  the  same  state,  may 
be  brought  in  the  circuit  or  district  court  of  either  district; 
and  the  court  in  which  it  is  brought  shall  have  jurisdiction  to 
hear  and  decide  it,  and  to  cause  mesne  or  final  process  to  be 
issued  and  executed,  as  fully  as  if  the  said  subject-matter  were 
wholly  within  the  district  for  which  such  court  is  constituted." 
It  is  an  unsettled  question  how  far  these  statutes  are  repealed 
by  the  act  of  March  3,  1875,  as  amended  by  the  act  of  1887-88. 
The  courts  have  held  both  ways  on  the  subject.86  It  is  certain 
that  section  738,  as  amended  by  these  recent  acts,  includes 
most  of  the  cases  covered  by  these  statutes,  but  there  are  some 

•  »  New  Jersey  Steel  &  Iron  Co.  v.  Chormann  (C.  C)  105  Fed.  532 ; 
Goddard  v.  Mailler  (C.  C.)  80  Fed.  422;  Seybert  v.  Railroad  Co.  (C. 
C.)  110  Fed.  810. 


§  105',  THE    CIVIL   JURISDICTION.  235 

cases  which  they  do  not  cover,  and  repeals  by  implication  are 
not  favored.  It  would  seem  that  these  statutes  are  still  in  force 
in  particulars  not  covered  by  the  latter  act,  and  could  be  used, 
at  least,  for  the  purpose  of  providing  a  simple  mode  of  service 
of  process  in  addition  to  that  given  under  this  later  act.  The 
question,  however,  is  unsettled. 

The  difference  between  local  and  transitory  actions  is  well 
known  in  the  law,  and  out  of  the  range  of  the  present  discus- 
sion. The  courts  have  held  that  an  action  of  trespass  for  in- 
juries to  land  is  local  in  its  nature,  and  triable  only  in  the  dis- 
trict where  the  land  lies.66  So  with  a  suit  to  cancel  a  mort- 
gage.6T 
Suits  to  Reach  Property  of  Absent  Defendants  in  the  District. 

Section  738  of  the  Revised  Statutes,  as  enlarged  by  the  act 
of  March  3,  1875,  and  left  unchanged  by  the  acts  of  1887-88, 
in  relation  to  the  jurisdiction  of  the  federal  courts,68  provides 
as  follows : 

"Sec.  8.  That  when  in  any  suit,  commenced  in  any  cir- 
cuit court  of  the  United  States,  to  enforce  any  legal  or  equitable 
lien  upon,  or  claim  to,  or  to  remove  any  incumbrance  or  lien 
or  cloud  upon  the  title  to  real  or  personal  property  within  the 
district  where  such  suit  is  brought,  one  or  more  of  the  defend- 
ants therein  shall  not  be  an  inhabitant  of,  or  found  within, 
the  said  district,  or  shall  not  voluntarily  appear  thereto,  it 
shall  be  lawful  for  the  court  to  make  an  order  directing  such 
absent  defendant  or  defendants  to  appear,  plead,  answer,  or 
demur,  by  a  day  certain  to  be  designated,  which  order  shall 
be  served  on  such  absent  defendant  or  defendants,  if  practicable, 
wherever  found,  and  also  upon  the  person  or  persons  in  posses- 
sion or  charge  of  said  property,  if  any  there  be ;  or  where  such 
personal  service  upon  such  absent  defendant  or  defendants  is 

ee  Ellenwood  v.  Chair  Co.,  158  U.  S.  105,  15  Sup.  Ct.  771,  39  L.  Ed. 
913. 

67  Cowell  v.  Water  Supply  Co.  (C.  C.)  96  Fed.  769,  reversed  121 
Fed.  53,  57  C.  C.  A.  393,  but  not  on  this  point 

«8  u.  S.  Comp.  St.  1901,  p.  513. 


236  CIRCUIT    COURT ORIGINAL    JURISDICTION.  (Cll.  11 

not  practicable,  such  order  shall  be  published  in  such  manner 
as  the  court  may  direct,  not  less  than  once  a  week  for  six 
consecutive  weeks;  and  in  case  such  absent  defendant  shall 
not  appear,  plead,  answer,  or  demur  within  the  time  so  limited, 
or  within  some  further  time,  to  be  allowed  by  the  court,  in  its 
discretion,  and  upon  proof  of  the  service  or  publication  of 
said  order,  and  of  the  performance  of  the  directions  contained 
in  the  same,  it  shall  be  lawful  for  the  court  to  entertain  juris- 
diction, and  proceed  to  the  hearing  and  adjudication  of  such 
suit  in  the  same  manner  as  if  such  absent  defendant  had  been 
served  with  process  within  the  said  district;  but  said  adjudica- 
tion shall,  as  regards  said  absent  defendant  or  defendants  with- 
out appearance,  affect  only  the  property  which  shall  have  been 
the  subject  of  the  suit  and  under  the  jurisdiction  of  the  court 
therein,  within  such  district,  and  when  a  part  of  the  said  real 
or  personal  property  against  which  such  proceeding  shall  be 
taken  shall  be  within  another  district,  but  within  the  same 
state,  said  suit  may  be  brought  in  either  district  in  said  state : 
provided,  however,  that  any  defendant  or  defendants  not  ac- 
tually personally  notified  as  above  provided  may,  at  any  time 
within  one  year  after  final  judgment  in  any  suit  mentioned  in 
this  section,  enter  his  appearance  in  said  suit  in  said  circuit 
court,  and  thereupon  the  said  court  shall  make  an  order  setting 
aside  the  judgment  therein,  and  permitting  said  defendant  or 
defendants  to  plead  therein  on  payment  by  him  or  them  of  such 
costs  as  the  court  shall  deem  just;  and  thereupon  said  suit 
shall  be  proceeded  with  to  final  judgment  according  to  law." 

This  act  is  intended,  in  the  cases  covered  by  it,  to  regulate 
the  suit  by  the  location  of  the  res ;  and  consequently  the  dis- 
trict or  residence  of  the  plaintiff  or  defendant  has  nothing  to 
do  with  it,  though,  of  course,  the  controversy  must  be  one  of 
which  the  court  has  jurisdiction  from  diversity  of  citizenship 
or  otherwise.  Suit,  however,  may  be  brought  where  the  prop- 
erty is,  although  neither  of  the  parties  resides  there."  The 
statute  covers  many  different  kinds  of  suits. 

«»  GREELEY  v.  LOWE,  155  TJ.  S.  58,  15  Sup.  Ct.  24,  39  L.  Ed.  69. 


§  105)  THE    CIVIL    JURISDICTION.  237 

Suits  to  Enforce  Any  Legal  or  Equitable  Lien  upon  or  Claim 
to  Real  or  Personal  Property  in  the  District. 
It  has  been  held  that  a  suit  to  quiet  title  comes  under  this 
provision.70  Also  a  suit  for  partition  of  land  is  treated  as  a 
claim  to  or  suit  to  settle  title  to  real  estate.71  So,  also,  a  suit 
to  reach  a  fund  in  the  hands  of  a  trustee  in  the  jurisdiction  of 
the  court.72  Suits  to  foreclose  mortgages  clearly  come  under 
the  provision.73  A  suit  to  enforce  a  lien  of  a  judgment  on 
property  within  the  district  is  covered  by  the  statute;74  so, 
also,  an  action  of  ejectment.76 

Suits  to  Remove  Any  Incumbrance  or  Lien  or  Cloud  upon  the 
Title  to  Real  or  Personal  Property. 
A  suit  by  a  creditor  of  a  corporation  to  set  aside  a  convey- 
ance made  by  the  corporation  comes  under  this  provision  of 
the  act.76  A  suit  to  remove  a  cloud  upon  a  title  caused  by  a 
tax  sale  is  covered  by  the  act.77  On  the  other  hand,  it  is  in- 
applicable to  purely  personal  actions,  as  to  suits  to  cancel  con- 
tracts where  no  lien  or  claim  or  title  to  property  is  involved.78 
The  act  is  intended  to  give  the  right  to  enforce  claims  or  liens 
existing  before  the  institution  of  the  suit,  and  hence  it  does  not 
cover  proceedings  by  foreign  attachment,  where  the  only  lien 
arises  from  the  institution  of  the  suit  itself.  It  is  well  settled 
in  the  federal  courts  that  the  proceeding  by  attachment  is  a  mere 
incident  to  a  personal  suit  against  the  owner,  and  cannot  be 
brought  unless  the  defendant  can  be  served  legally  with  pro- 

70  U.  S.  v.  Southern  Pac.  Co.  (C.  C.)  63  Fed.  481. 

ti  GREELEY  v.  LOWE,  155  TJ.  S.  58,  15  Sup.  Ct.  24,  39  L.  Ed.  69. 

72  Goodman  v.  Niblack,  102  U.  S.  556,  26  L.  Ed.  229. 

73  Seybert  v.  Railroad  Co.  (C.  C.)  110  Fed.  810. 

74  De  Hierapolis  v.  Lawrence  (C.  C.)  99  Fed.  321. 

75  Spencer  v.  Stockyards  Co.  (C.  C.)  56  Fed.  741. 

7  6  Mellen  v.  Iron  Works,  131  U.  S.  352,  9  Sup.  Ct.  781,  33  L.  Ed. 
178. 

77  Dick  v.  Foraker,  155  TJ.  S.  404.  15  Sup.  Ct.  124,  39  L.  Ed.  201. 
7»  New  York  Life  Ins.  Co.  v.  Bangs,  103  TJ.  S.  435,  26  L.  Ed.  580. 


238  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Ch.  11 

cess.79  Prior  to  the  jurisdiction  acts  of  1887-88,  process  could 
be  served  on  a  defendant  if  found  in  a  district,  though  he  did 
not  reside  therein;  under  this  last  amendment  this  can  no 
longer  be  done.  On  the  other  hand,  even  under  this  last  amend- 
ment, suit  can  be  brought  within  the  district  of  the  residence  of 
the  plaintiff,  and  accompanied  by  an  attachment,  if  service  can 
be  obtained  on  the  defendant.  A  suit  for  the  specific  perform- 
ance of  a  contract  has  also  been  held  not  to  come  within  the 
purview  of  this  act,  as  a  decree  in  such  cases  acts  in  personam, 
and  not  on  the  land  and  property  itself.80  A  suit  to  restrain 
the  enforcement  of  a  contract  of  sale  of  stock  by  a  corporation 
to  certain  other  defendants  as  illegal  does  not  come  within  the 
act,  as  there  is  no  question  of  title  or  claim  in  such  a  case.81 
A  suit  by  heirs  against  trustees  under  a  will  is  not  covered  by 
the  act.82 

Procedure  under  the  Act. 

It  is  clear  from  the  language  of  the  act  that  if  it  is  intended 
to  repeal  sections  740,  741,  and  742,  such  a  suit  cannot  be 
commenced  by  an  ordinary  process  sent  into  another  district, 
but  it  is  first  necessary,  even  as  between  two  defendants  of  dif- 
ferent districts  in  the  same  state,  to  follow  the  language  of 
the  act  and  secure  an  order  from  the  court  directing  the  absent 
defendant  or  defendants  to  appear,  plead,  answer,  or  demur 
by  a  time  certain  to  be  designated,  and  then  to  serve  that  order 
on  the  defendants,  if  practicable,  and  upon  the  person  in  charge 
of  the  property.  If,  however,  those  sections,  as  is  believed  to 
be  the  case,  are  still  in  force,  the  original  process  could  be  sent 
into  another  district  in  the  same  state  and  served.  It  is  be- 
lieved that  this  can  be  done,  notwithstanding  one  decision  to 
the  contrary.83     They  ought,  at  least,  to  cover  the  case  of  de- 

7»  EX  PARTE  DES  MOINES  &  M.  R.  CO.,  103  TJ.  S.  794,  20  L. 
Ed.  401. 

so  Municipal  Inv.  Co.  v.  Gardiner  (C.  C.)  02  Fed.  954. 
si  Lengel  v.  Refining  Co.  (C.  C.)  110  Fed.  19. 
82  Fayerweather  v.  Ritch  (C.  C.)  89  Fed.  385. 
sa  Seybert  v.  Railroad  Co.  (C.  C.)  110  Fed.  810. 


§  106)  THE    CIVIL   JURISDICTION.  239 

fendants  in  different  districts  in  the  same  state.  If,  however, 
original  process  cannot  be  served,  and  only  the  order  of  the 
court  under  this  last  act,  such  order  can  be  sent  not  only  into 
another  district  of  the  same  state,  but  into  any  other  part  of  the 
United  States,  and  can  be  served  upon  the  defendant,  if  prac- 
ticable, wherever  found.84  It  is  therefore  necessary,  first,  to 
make  some  effort  to  find  the  defendant,  and  to  serve  on  him  the 
order  of  the  court  requiring  him  to  appear  and  defend  himself, 
and  also  to  serve  it  upon  the  person  in  charge  of  the  property. 
Only  after  that  is  done  would  it  be  allowable  to  resort  to  the 
substituted  service  of  publication,  and  the  court  will  probably 
require  some  proof  of  an  attempt  to  locate  the  defendant  be- 
fore allowing  the  substituted  service.  The  act  carries  out  the 
theory  of  proceedings  in  rem  under  constructive  service,  and 
makes  it  only  binding  as  to  the  property  itself  in  case  there  is 
no  appearance.  If  there  is  an  appearance,  on  the  other  hand, 
the  suit  becomes  an  ordinary  suit  in  personam,  and  could  be 
proceeded  with  by  the  plaintiff  to  a  personal  judgment.86 


SAME— JURISDICTION    AS    AFFECTED    BY    ASSIGNMENT. 

106.  The  assignee  of  a  chose  in  action  cannot  sue  in  the  fed- 
eral courts  unless  his  assignor  could  have  sued  there, 
except  in  certain  cases  named  in  the  statute* 

In  addition  to  the  qualification  as  to  the  right  to  sue  in  ref- 
erence to  residence  of  the  plaintiff  or  defendant,  there  is  a  fur- 
ther qualification  in  the  statute  in  reference  to  the  character  of 
the  claim  to  be  asserted.     It  provides : 

"Nor  shall  any  circuit  or  district  court  have  cognizance  of 
any  suit,  except  upon  foreign  bills  of  exchange,  to  recover  the 
contents  of  any  promissory  note  or  other  chose  in  action  in 

s*  Mellen  v.  Iron  Works,  131  U.  S.  352,  9  Sup.  Ct.  781,  33  L.  Ed. 
178. 

85  Cooper  v.  Reynolds,  10  Wall.  308,  19  L.  Ed.  931;  Pennoyer  v. 
Neff,  95  U.  S.  714,  24  L.  Ed.  565. 


240  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Cll.  11 

favor  of  any  assignee,  or  of  any  subsequent  holder  if  such  in- 
strument be  payable  to  bearer  and  be  not  made  by  any  corpora- 
tion, unless  such  suit  might  have  been  prosecuted  in  such  court 
to  recover  the  said  contents,  if  no  assignment  or  transfer  had 
been  made." 

The  question  what  is  meant  by  contents  "of  any  promissory 
note  or  any  other  chose  in  action"  has  been  considered  by  the 
Supreme  Court  more  than  once,  and  it  is  held  to  embrace  the 
rights  conferred  by  the  instrument  which  were  capable  of  en- 
forcement by  suit.86 

The  clause  applies  to  any  cause  of  action  arising  out  of  a 
contract  and  subsequently  assigned.  For  instance,  a  suit  to 
enforce  specific  performance  of  a  contract  cannot  be  brought 
by  the  assignee  of  such  a  cause  of  action  unless  the  assignor  also 
could  have  brought  it.87 

So  a  suit  to  enforce  the  lien  of  a  judgment  growing  out  of 
a  contractual  right  of  action  cannot  be  brought  by  the  assignee 
unless  the  judgment  creditor  also  could  have  brought  it.88 

In  the  cases  cited  in  the  note,  the  Supreme  Court  limits  its 
decision  to  judgments  based  upon  causes  of  action  growing  out 
of  contracts.  It  would  seem,  however,  that  the  principle  would 
apply  also  to  an  assignment  of  a  judgment  based  on  a  cause  of 
action  springing  out  of  a  tort.  It  will  be  seen  presently  that 
the  statute  does  not  apply  to  a  cause  of  action  for  a  tort,  but, 
when  that  cause  of  action  is  reduced  to  judgment,  under  ordi- 
nary principles  the  tort  is  merged  in  the  judgment,  and  the 
judgment  creditor  then  has  a  cause  of  action  springing  out  of 
an  implied  contract.  This  question,  however,  cannot  be  consid- 
ered as  settled. 

The  statute  applies  also  to  suits  by  the  assignee  of  warrants 
by  a  city  not  payable  to  bearer,  and  even  to  a  purchaser  of  such 

•  e  Shoecraft  v.  Bloxham,  124  U.  S.  730,  735,  8  Sup.  Ct.  686,  31  L. 
Ed.  574. 

8  7  Corbin  V.  Black  Hawk  County,  105  U.  S.  659,  26  L.  Ed.  1136. 

ss  Walker  v.  Powers,  104  U.  S.  245,  26  L.  Ed.  729;  Mississippi 
Mills  v.  Conn,  150  U.  S.  202,  14  Sup.  Ct.  75,  37  L.  Ed.  1052. 


§  106)  THE    CIVIL    JURISDICTION.  241 

warrants  at  a  sale  held  by  an  administrator  of  the  original 
payee  under  an  order  of  the  probate  court.89 

It  applies  to  notes  payable  to  bearer,  unless  the  maker  is  a 
corporation.  In  construing  what  notes  are  payable  to  bear- 
er, it  has  been  held  that  a  note  to  the  maker's  own  order,  and 
indorsed  by  the  maker  in  blank,  is  a  note  payable  to  bearer, 
and  that  the  holder  of  such  a  note  is  not  an  assignee  in  the  sense 
of  the  statute,  the  reason  being  that  the  cause  of  action  by  him 
in  such  case  is  necessarily  original;  as  the  maker  and  payee  of 
the  note  is  the  same.90 

But  the  statute  does  apply  if  the  note  is  payable  to  any  payee 
not  the  maker,  and  indorsed  by  such  payee  in  blank,  for  there 
an  additional  party  comes  in.91 

Notes  made  payable  to or  bearer — that  is,  with  ths 

payee's  name  left  blank — are  payable  to  bearer  in  the  sense  of 
the  statute.82 

Coupons  are  also  notes  payable  to  bearer  in  the  sense  of 
the  statute,  although  the  bonds  from  which  they  are  detached 
are  not,  for  under  the  principles  of  the  law  merchant  a  coupon 
is  an  independent  obligation.93 

Under  the  statute,  however,  notes  of  corporations  payable 
to  bearer  are  excepted  from  its  operations,  so  that  the  holder 
of  such  a  note  can  sue  in  the  federal  courts  independently  of 
the  citizenship  of  the  original  assignor.  This  principle,  how- 
ever, under  the  clear  language  of  the  statute  itself,  applies  only 
to  corporate  notes  payable  to  bearer,  and  not  to  corporate 
notes  payable  to  order  and  indorsed.94 

so  City  of  New  Orleans  v.  Benjamin.  153  U.  S.  411,  14  Sup.  Ct.  905, 
38  L.  Ed.  764;  Glass  v.  Concordia,  176  U.  S.  207,  20  Sup.  Ct  346, 
44  L.  Ed.  436. 

»o  Barling  v.  Bank,  50  Fed.  260,  1  C.  C.  A.  510. 

si  Thomson  v.  Elton  (C.  C.)  100  Fed.  145. 

9  2  Lyon  County  v.  Bank,  100  Fed.  337,  40  C.  C.  A.  391. 

83  Independent  School  Dist.  of  Sioux  City  v.  Rew,  111  Fed.  1,  49 
C.  C.  A.  19S,  55  L.  R.  A.  364. 

94  Thomson  v.  Elton  (C.  C.)  100  Fed.  145;   Lake  County  Com'rs  v. 
Dudley,  173  U.  S.  243,  19  Sup.  Ct.  398,  43  L.  Ed.  684. 
Hughes  Feo.  Jtjr. — 16 


242  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  11 

Municipal  corporations  come  within  the  language  of  the  ex- 
ception, and  the  holder  of  their  notes,  if  payable  to  bearer, 
can  sue  independently  of  the  citizenship  of  the  assignor.95 

This  same  principle  applies  to  an  Ohio  township,  which  un- 
der their  law  is  a  corporation.8' 

C hoses  in  Action. 

This  applies  to  any  right  of  action  springing  out  of  a  con- 
tract, as  stated  above ;  for  instance,  to  a  suit  to  compel  specific 
performance  of  a  contract  for  conveyance  of  land,  which  can- 
not be  asserted  in  the  United  States  court  unless  the  assignor 
also  could  have  sued.87 

Under  this  term  is  included  an  assignment  of  water  rents 
by  a  water  company  under  a  mortgage,  with  the  right  to  col- 
lect the  water  rents  as  additional  security.  The  assignee  of  such 
right  of  action  cannot  sue  unless  the  assignor  also  could  have 
sued.8' 

Causes  of  action  springing  out  of  tort,  however,  are  not 
included  in  the  choses  in  action  mentioned  by  the  statute, 
as  they  apply  only  to  choses  in  action  growing  out  of  con- 
tractual rights.  Hence  the  assignee  of  a  cause  of  action 
springing  from  tort  can  sue  in  his  own  name  independently  of 
the  citizenship  of  the  assignor.  Such  can  be  done,  for  instance, 
in  the  case  of  an  action  of  replevin.99 

So  an  assignee  of  a  right  of  action  for  trespass  to  real  prop- 
erty can  sue  independently  of  the  citizenship  of  his  assignor.100 

so  City  of  New  Orleans  v.  Quinlan,  173  U.  S.  191,  19  Sup.  Ct.  329, 
43  L.  Ed.  664. 

»e  Loeb  v.  Trustees,  179  U.  S.  472,  21  Sup.  Ct.  174,  45  L.  Ed.  280. 

»7  PLANT  INV.  C0\  v.  RAILROAD  CO.,  152  TJ.  S.  71,  14  Sup.  Ct 
483,  38  L.  Ed.  358. 

»»  City  of  Eau  Claire  v:  Payson,  107  Fed.  552,  46  C.  C.  A.  466; 
American  Waterworks  &  Guarantee  Co.  v.  Water  Co.  (C.  C.)  115  Fed. 

171. 

o»  Deshler  v.  Dodge,  16  How.  622,  14  L.  Ed.  1084;  Buckingham  v. 
Dake,  112  Fed.  258,  50  C.  C.  A.  492. 

ioo  Ambler  v.  Eppinger,  137  U.  S.  480,  11  Sup.  Ct.  173,  34  L.  Ed. 
765. 


§  106)  THE    CIVIL   JURISDICTION.  243 

And  the  same  principle  applies  to  an  assigned  right  of  ac- 
tion against  a  bank  for  not  protesting  a  draft  sent  to  it  by 
another  bank  for  collection.101 

Meaning  of  "Assignee." 

The  statute  applies  only  to  a  cause  of  action  existing  in 
some  one  else  and  assigned.  If  the  cause  of  action  in  its  na- 
ture is  inherent  in  the  suitor,  the  form  which  the  note  evi- 
dencing the  contract  may  have  taken  does  not  affect  his  right 
to  sue.  For  instance,  in  the  case  of  Holmes  v.  Goldsmith,102 
a  note  was  made  for  the  accommodation  of  the  payee,  and  dis- 
counted also  for  his  accommodation,  he  indorsing  it  to  the 
party  who  discounted  it.  In  a  suit  by  the  holder  of  the  note,  it 
was  held  that  the  statute  did  not  apply ;  that  the  holder  could 
go  against  the  payee  as  the  party  really  liable,  regardless  of  the 
fact  that  he  was  in  form  the  indorser  or  payee,  for  the  reason 
that,  as  it  was  accommodation  paper,  the  payee  could  not  have 
sued  the  makers ;  and  therefore,  as  he  had  no  right  of  action, 
there  was  nothing  which  he  could  assign,  and  hence  that  the 
holder  of  the  note  could  sue,  not  by  virtue  of  any  assignment 
from  him,  but  by  virtue  of  an  original  liability  of  his  own. 

So,  also,  where  a  party  gave  a  draft  on  a  city  and  the  city 
accepted  the  draft,  in  a  suit  by  the  payee  of  the  draft  against 
the  city  as  acceptor,  it  was  held  that  the  suit  was  based  upon 
an  original  liability  of  the  city  to  the  payee,  and  not  upon  any 
assigned  right  of  action.108 

Nor  does  the  statute  apply  to  a  party  claiming  under 
the  equitable  doctrine  of  subrogation,  as  his  right  of  action 
is  an  original  one  and  not  an  assigned  one,  and  this  is  not 
affected  by  the  fact  that  an  assignment  may  have  been  made 
merely  to  evidence  the  party's  right  to  subrogation.104 

101  Barney  v.  Bank,  Fed.  Cas.  No.  1,031. 

102  HOLMES  v.  GOLDSMITH,  147  U.  S.  150,  13  Sup.  Ct.  288.  37 
L.  Ed.  118. 

io3  City  of  Superior  v.  Ripley,  138  U.  S.  93,  11  Sup.  Ct  288,  34  L. 
Ed.  914. 

104  City  of  New  Orleans  v.  Gaines'  Adm'r,  138  U.  S.  595,  11  Sup. 
Ct.  428.  34  L.  Ed.  1102. 


244  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Cll.  11 

Nor  does  the  statute  defeat  the  right  of  the  assignee  to  sue 
in  his  own  name  where  the  original  contract  had  been  modi- 
fied by  a  new  contract,  and  the  right  of  action  properly  arises 
under  the  new  contract.  This  is  illustrated  by  American  Col- 
ortype  Co.  v.  Continental  Colortype  Co.105  In  this  case  em- 
ployes of  a  corporation  had  agreed,  during  their  periods  of 
employment,  that  they  would  not  divulge  the  secret  processes 
of  their  employer.  The  employer  transferred  these  contracts 
to  another  company,  and  the  employes  agreed  to  the  trans- 
fer. In  a  suit  to  restrain  these  employes  from  entering  the 
employment  of  a  rival  corporation,  it  was  held  that  under  this 
transaction  the  company  was  asserting  a  right  of  action  of  its 
own,  and  not  any  assigned  right  of  action  from  the  first 
corporation. 

The  statute  plainly  refers  only  to  an  assignee  of  the  right 
of  action,  and  does  not  affect  the  defendant's  side  of  the  liti- 
gation. Hence,  where  the  holder  of  a  lease  assigned  it  and 
the  assignee  took  possession,  a  suit  by  the  lessor  against  the 
assignee  of  the  lessee,  based  on  the  lease,  was  held  not  cov- 
ered by  the  statute.106 

Nor  does  the  statute  apply  to  a  party  suing  on  a  forthcom- 
ing bond  in  an  attachment  proceeding  by  virtue  of  a  state 
statute  which  required  the  sheriff  to  take  such  a  bond,  such 
bond  being  for  the  benefit  of  parties  injured  by  the  attach- 
ment, for  the  right  of  action  in  such  case  is  in  the  party  in- 
jured, and  not  by  virtue  of  any  assignment  from  the  sheriff.107 

The  statute  imposes  this  restriction  on  the  jurisdiction  sim- 
ply in  reference  to  the  original  assignor  and  the  last  assignee. 
If  jurisdiction  can  be  obtained  as  far  as  they  are  concerned, 
the  citizenship  of  intermediate  assignees  or  indorsers  does  not 
defeat  it.108 


105  1S8  U.  S.  104,  23  Sup.  Ct.  265,  47  L.  Ed.  404. 
ice  Adams  v.  Shirk,  105  Fed.  659,  44  C.  C.  A.  653. 
lor  Smith  v.  Packard,  98  Fed.  793,  39  C.  C.  A.  294. 
los  Emsheimer  v.  New  Orleans,  186  U.  S.  33,  22  Sup.  Ct.  770,  46 
L.  Ed.  1042. 


§  ±06)  THE    CIVIL   JURISDICTION.  245 

It  has  been  held  that  the  statute  imposes  this  restriction 
simply  in  so  far  as  the  citizenship  of  the  party  is  concerned,  not 
in  reference  to  any  other  requisite  of  jurisdiction,  and  hence  a 
party  who  held  several  assignments  which  together  aggre- 
gated $2,000,  and  in  which  the  assignors  had  the  proper  citi- 
zenship, was  held  to  be  entitled  to  sue,  even  though  the  other 
separate  assignors  could  not  have  sued  on  account  of  the 
fact  that  the  separate  claims  held  by  them  were  less  than 
$2,000.109  But  the  recent  case  of  Waite  v.  City  of  Santa 
Cruz  110  is  in  conflict  with  this,  though  it  discussed  another 
section  of  the  act. 

The  requisite  as  to  the  citizenship  applies  simply  to  the  time 
of  institution  of  suit,  not  to  the  time  of  assignment.  If  the 
proper  citizenship  exists  as  to  the  assignor  and  assignee 
when  suit  is  brought,  the  fact  that  it  did  not  exist  when  the 
assignment  was  made  does  not  affect  the  question.111 

In  instituting  such  a  suit,  it  is  essential  that  the  pleadings 
must  show  on  their  face  the  requisite  citizenship  both  of  the 
assignor  and  assignee.112 

In  considering  the  questions  arising  under  this  act,  it  is 
important  to  bear  in  mind  that,  while  a  somewhat  similar  re- 
quirement has  been  in  the  federal  statutes  since  the  original 
judiciary  act  of  1789,  the  language  of  the  act  of  1887-88  is 
very  different.  Hence  decisions  on  cases  arising  prior  to 
1887-88  must  be  carefully  compared  with  the  acts  then  in 
force  before  they  can  be  safely  cited  as  bearing  on  the  present 
act. 

109  Bowden  v.  Burnham,  59  Fed.  752,  8  C.  C.  A.  249. 

no  184  U.  S.  302,  22  Sup.  Ct.  327,  46  L.  Ed.  552. 

in  Emsheimer  v.  New  Orleans,  186  U.  S.  33,  22  Sup.  Ct.  770,  46 
L.  Ed.  1042. 

112  Parker  v.  Ormsby,  141  U.  S.  81,  11  Sup.  Ct.  912,  35  L.  Ed  654; 
Smith  v.  Fifield,  91  Fed.  561,  33  C.  C.  A.  681. 


246  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Ch.  12 


CHAPTER   XH. 

THE  CIRCUIT  COURT  (Continued)— ORIGINAL  JURISDIC- 
TION (Continued). 

107.  Same — Devices  to  Confer  Jurisdiction. 

108.  Same — Miscellaneous  Jurisdiction. 

109.  Jurisdiction  as  Incident  to  Jurisdiction  on  the  Grounds  Pre- 

viously Discussed. 

SAME— DEVICES  TO  CONFER  JURISDICTION. 

107.  Attempts  to  confer  jurisdiction  by  pretended  changes 
of  citizenship  or  residence,  or  colorable  assignments, 
are  forbidden,  and  will  canse  dismissal  of  the  suit  by 
the  court  ex  mero  motu,  if  discovered. 

The  fifth  section  of  the  act  of  March  3,  1875,  as  amended 
by  the  act  of  August  13,  1888,  provides  as  follows :  "That  if, 
in  any  suit  commenced  in  a  circuit  court,  or  removed  from  a 
state  court  to  a  circuit  court  of  the  United  States,  it  shall 
appear  to  the  satisfaction  of  said  circuit  court,  at  any  time 
after  such  suit  has  been  brought  or  removed  thereto,  that 
such  suit  does  not  really  and  substantially  involve  a  dispute 
or  controversy  properly  within  the  jurisdiction  of  said  circuit 
court,  or  that  the  parties  to  said  suit  have  been  improperly 
or  collusively  made  or  joined,  either  as  plaintiffs  or  defend- 
ants, for  the  purpose  of  creating  a  case  cognizable  or  remov- 
able under  this  act,  the  said  circuit  court  shall  proceed  no  fur- 
ther therein,  but  shall  dismiss  the  suit  or  remand  it  to  the 
court  from  which  it  was  removed  as  justice  may  require,  and 
shall  make  such  order  as  to  costs  as  shall  be  just."  x 

This  statute  is  intended  to  prevent  attempts  to  confer  upon 
the  federal  courts  the  jurisdiction  not  given  them  by  law. 

i  18  Stat.  472;  24  Stat.  555;  25  Stat.  436  [U.  S.  Comp.  St.  1901,  p. 
511]. 


§  107)  THE    CIVIL   JURISDICTION.  247 

Changes  of  Citizenship. 

It  has  sometimes  happened  that  a  citizen  changes  his  citi- 
zenship for  the  purpose  of  acquiring  a  right  to  sue  in  the 
federal  courts.  If  his  change  is  an  actual,  bona  fide  change, 
and  he  removes  and  takes  up  his  domicile  in  a  new  place,  with 
the  intention  of  remaining  there,  then  the  federal  court  would 
have  jurisdiction,  and  the  single  fact  that  it  was  his  intention 
to  confer  jurisdiction  would  not  defeat  it.  This  was  held 
even  before  the  enactment  of  the  above  statute,  and  has  not 
been  changed  by  the  statute.8 

Independently  of  this  statute,  a  change  of  the  citizenship  of 
the  litigant,  in  the  federal  courts,  after  the  suit  has  been 
brought,  does  not  defeat  the  jurisdiction;  nor  does  the  fact 
that  new  parties  come  into  the  litigation,  as  jurisdiction  is 
tested  by  the  state  of  facts  at  the  institution  of  the  suit,  and 
not  by  subsequent  changes.3 

Transfer  of  Causes  of  Action. 

This  statute  has  come  before  the  courts  more  frequently  on 
such  transfers  than  where  attempts  have  been  made  to  change 
the  residence  of  litigants.  The  principle,  however,  in  the  two 
cases  is  the  same.  If  the  assignment  of  the  cause  of  action 
is  an  actual,  bona  fide  assignment,  leaving  no  interest  what- 
ever in  the  assignor,  then  the  court  would  have  jurisdiction, 
subject,  of  course,  to  the  restriction  already  discussed,  as  to 
the  cases  in  which  an  assignee  can  sue ;  and  that  jurisdiction 
would  not  be  defeated  by  the  motive  of  the  parties  in  making 
or  accepting  the  assignment.  But  where  the  assignment  is 
colorable — as  for  instance,  where  it  is  made  simply  for  the 
purpose  of  collection — then  the  principle  would  apply,  and 
the  court  would  refuse  jurisdiction.     The  cases  of  Williams  v. 


2  Jones  v.  League,  18  How.  76,  15  L.  Ed.  263;  MORRIS  v.  GIL- 
MER, 129  U.  S.  315,  9  Sup.  Ct  289,  32  L.  Ed.  690. 

s  Phelps  v.  Oaks,  117  U.  S.  236,  6  Sup.  Gt  714,  29  L.  Ed.  888; 
Collins  v.  Ashland  (D.  C.)  112  Fed.  175. 


248  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 

Nottawa  Tp.,4  Farmington  Village  Corp.  v.  Pillsbury,6  New 
Providence  Tp.  v.  Halsey,6  and  Cashman  v.  Amador  &  S.  Canal 
Co.7  illustrate  the  refusal  of  the  court  to  take  jurisdiction 
where  the  assignment  was  for  collection  only.  But  here, 
too,  if  the  assignment  is  an  actual  one,  the  motive  does  not 
affect  the  question.8  On  the  other  hand,  if  the  transfer  to 
one  nonresident  citizen  is  good,  so  that  he  could  sue,  the  sub- 
sequent transfer  by  him  to  another,  though  with  the  intent 
of  giving  the  other  a  right  to  sue,  would  not  invalidate  it.9 

In  the  recent  case  of  Waite  v.  City  of  Santa  Cruz  10  the  court 
held  that  the  statute  would  apply  not  only  if  the  assignment  was 
colorable  only,  but  if  the  amount  was  insufficient  to  have  al- 
lowed the  assignor  to  sue. 

An  interesting  question  arises  in  the  case  of  organization 
of  new  corporations,  as  affecting  this  question.  In  the  case 
of  Lehigh  Min.  &  Mfg.  Co.  v.  Kelly  "  the  stockholders  of  a 
Virginia  corporation  organized  a  Pennsylvania  corporation, 
and  conveyed  to  it  the  land,  which  up  to  that  time  had  stood 
in  the  name  of  the  Virginia  corporation.  The  Virginia  cor- 
poration, however,  was  still  kept  in  existence,  so  that,  al- 
though there  was  no  express  agreement  by  the  Pennsylvania 
corporation  to  reconvey  after  the  termination  of  the  suit,  it 
was  in  the  power  of  the  stockholders  of  the  Virginia  corpora- 
tion to  compel  such  reconveyance.  The  court  held  that,  un- 
der such  circumstances,  the  jurisdiction  could  not  be  sus- 
tained, as  it  was  a  mere  device  that  came  within  the  prohibi- 
tion  of  the   statute.     On  the  other  hand,  in  Irvine  Co.  v. 

*  104  U.  S.  209,  26  L.  Ed.  719. 

6  114  U.  S.  138,  5  Sup.  Ct.  807,  29  L.  Ed.  114. 

o  117  TJ.  S.  336,  6  Sup.  Ct.  764,  29  L.  Ed.  904. 

i  118  U.  S.  58,  6  Sup.  Ct.  926,  30  L.  Ed.  72. 

s  Lanier  v.  Nash,  121  U.  S.  404,  7  Sup.  Ct.  919,  30  L.  Ed.  947; 
Lake  County  Com'rs  v.  Schradsky,  97  Fed.  1,  38  C.  C.  A.  17. 

»  Ashley  v.  Supervisors,  83  Fed.  534,  27  C.  C.  A.  585. 

io  184  TJ.  S.  302,  22  Sup.  Ct.  327,  46  L.  Ed.  552. 

ii  LEHIGH  MIN.  &  MFG.  CO.  V.  KELLY,  160  U.  S.  327,  16 
Sup.  Ct.  307,  40  L.  Ed.  444. 


§  107)  THE    CIVIL   JURISDICTION.  249 

Bond  12  an  individual  organized  a  corporation,  appointed  as 
a  board  of  directors  parties  whom  he  could  control,  and  con- 
veyed to  them  just  enough  stock  to  qualify  them,  and  then 
conveyed  to  this  new  corporation  the  property  as  to  which 
suit  was  to  be  brought.  There  was  nothing  to  show  any  in- 
tent to  convey  the  fruits  of  litigation  back  to  the  individual, 
though  he  controlled  all  but  a  few  shares  of  the  corporate 
stock,  and  practically  controlled  the  board  of  directors.  The 
court  held  in  this  case  that  the  transfer  gave  jurisdiction  to 
the  new  corporation  to  sue,  despite  the  above  Supreme  Court 
decision. 

Colorable  Assertion  of  Federal  Question. 

The  statute  also  applies  where  a  federal  question  has  been 
evidently  raised  for  the  mere  purpose  of  conferring  jurisdic- 
tion on  the  court — especially  when,  after  the  pleadings  are 
made  up,  it  is  patent  that  the  federal  question  is  immaterial, 
and  that  the  case  will  turn  upon  other  questions.13 

The  statute  may  also  be  violated  by  an  improper  joinder  of 
parties  for  the  express  purpose  of  conferring  jurisdiction. 
For  instance,  a  suit  by  a  stockholder  against  a  corporation 
and  the  officers  of  the  corporation,  who  refuse  to  assert  a 
corporate  right — the  officers  being  joined  merely  on  the  alle- 
gation that  they  had  been  requested  to  assert  the  right  and 
had  refused — contravenes  the  statute.14 

In  equity  cases  this  is  also  covered  by  equity  rule  94,  which 
provides  as  follows :  "Every  bill  brought  by  one  or  more 
stockholders  in  a  corporation,  against  the  corporation  and 
other  parties,  founded  on  a  right  which  may  properly  be 
asserted  by  the  corporation,  must  be  verified  by  oath,  and 
must  contain  an  allegation  that  the  plaintiff  was  a  shareholder 

12  (C.  C.)  74  Fed.  849. 

is  Robinson  v.  Anderson,  121  U.  S.  522,  7  Sup.  Ct.  1011,  30  L.  Ed. 
1021;  Excelsior  Wooden  Pipe  Co.  v.  Bridge  Co.,  185  TJ.  S.  282,  22 
Sup.  Ct.  681,  46  L.  Ed.  910;    ante,  c.  10. 

i*  City  of  Detroit  v.  Dean,  106  U.  S.  537.  1  Sup.  Ct  560,  27  L.  Ed. 
800. 


250  CIRCUIT    COURT — ORIGINAL    JURISDICTION.  (Ch.  12 

at  the  time  of  the  transaction  of  which  he  complains,  or  that 
his  share  had  devolved  on  him  since,  by  operation  of  law,  and 
that  the  suit  is  not  a  collusive  one  to  confer  on  a  court  of  the 
United  States  jurisdiction  of  a  case  of  which  it  would  not 
otherwise  have  cognizance.  It  must  also  set  forth  with  par- 
ticularity the  efforts  of  the  plaintiff  to  secure  such  action  as 
he  desires  on  the  part  of  the  managing  directors  or  trustees, 
and,  if  necessary,  of  the  shareholders,  and  the  cause  of  his 
failure  to  obtain  such  action." 

However,  the  mere  fact  that  the  trustees  are  in  sympathy 
with  the  action  brought  by  the  stockholder  would  not  defeat 
the  jurisdiction,  nor  bring  them  within  the  purview  of  this 
rule,  if  their  refusal  to  bring  suit  in  the  name  of  the  corpora- 
tion was  actually  bona  fide,  and  based  on  grounds  which  they 
thought  sufficient.15 

Method  of  Attacking  Jurisdiction  under  This  Section. 

Under  the  express  language  of  the  act,  lack  of  jurisdiction 
need  not  be  raised  by  the  pleadings,  though  it  would  be  proper 
to  do  so.  It  may  be  raised  at  any  time,  and  the  court,  of  its  own 
motion,  may  raise  it.16  The  statute,  however,  requires  that  the 
want  of  jurisdiction  on  this  ground  must  "appear  to  the  satis- 
faction of  said  court."  Under  this  clause  the  court  discourages 
attempts  to  raise  the  question  when  it  has  not  been  raised  by  the 
pleadings,  and  the  case  has  progressed  far  on  the  merits. 
In  such  case  the  party  raising  it  has  the  burden  of  proof  to 
show  clearly  that  the  statute  has  been  violated.17 

iBBowdoin  College  v.  Merritt  (C.  C.)  63  Fed.  213.  See,  also,  on 
this  general  subject,  Illinois  Cent.  R.  Co.  v.  Adams,  ISO  U.  S.  28,  21 
Sup.  Ct  251,  45  L.  Ed.  410;  City  of  Quincy  v.  Steel,  120  U.  S.  241,  7 
Sup.  Ct.  520,  30  L.  Ed.  624;  Simpson  v.  Stockyards  Co.  (C.  C.)  110 
Fed.  799. 

i6  MORRIS  v.  GILMER,  129  U.  S.  315,  9  Sup.  Ct.  289,  32  L.  Ed. 
690;  Lake  Co.  v.  Dudley,  173  U.  S.  243,  19  Sup.  Ct.  398,  43  L.  Ed.  684. 

it  Deputron  v.  Young,  134  U.  S.  241,  10  Sup.  Ct.  539,  33  L.  Ed. 
923;  Collins  v.  Ashland  (D.  O.)  112  Fed.  175;  Kilgore  v.  Norman 
(C.  C.)  119  Fed.  1006. 


§  108)  THE    CIVIL   JURISDICTION.  251 


SAME— MISCELLANEOUS   JURISDICTION. 

108.    The  original  civil  jurisdiction  of  the  circuit  courts  ex- 
tends to   the   following   miscellaneous  matters: 

(a)  Suits  in  equity  by  the  United  States. 

(b)  Suits  at  common  law  by  United  States  or  officers. 

(c)  Imports,  internal  revenue,   and  postal   suits. 

(d)  Certain  suits  for  penalties. 

(e)  Condemnation  of  insurrectionary  property. 

(f)  Suits  under  slave-trade  laws. 

(g)  Suits  on  certain  debentures, 
(h)  Patent  and  copyright  suits, 
(i)    Suits  against  national  banks. 

(j)    Certain  suits  against  the   Comptroller  of  the   Currency. 

(k)  Suits  to  recover  damages  for  violation  of  certain  federal 
rights. 

(1)    Suits  to  recover  offices. 

(m)  Suits  for  removal  of  officers  holding  contrary  to  four- 
teenth amendment. 

(n)    Penalties  under  laws  relating  to  elective  franchise. 

(o)    Certain  civil  rights  suits. 

(p)  Suits  on  account  of  injuries  by  conspirators  in  certain 
cases. 

(q)  Suits  against  persons  having  knowledge  of  such  con- 
spiracy. 

(r)  Suits  against  officers  and  owners  of  vessels  for  negligence 
causing  death. 

(s)    Suits  against  the  United  States. 

(t)    Suits  to  abate  unlawful  inclosures  of  public  lands. 

(u)    Suits  under  interstate  commerce  act. 

(v)    Condemnation  proceedings. 

(w)    Habeas   corpus. 

(x)    Writs  of  ne  exeat. 

(xx)    Suits  under  anti-trust  acti. 

(y)    Obstructions  to  navigation. 

(yy)    Certain  bankruptcy  matters. 

(z)  Suits  on  bonds  of  contractors  for  paper  for  public  print- 
ing. 

(zz)    Review  of  decisions  of  appraisers. 

(a)  Suits  in  Equity  by  the  United  States. 

The  second  clause  of  section  629  of  the  Revised  Statutes 
gives  the  circuit  courts  original  jurisdiction  "of  all  suits  in 


252 


CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 


equity,  where  the  matter  in  dispute,  exclusive  of  costs,  ex- 
ceeds the  sum  or  value  of  five  hundred  dollars,  and  the  United 
States  are  petitioners." 

It  has  been  seen,  under  the  discussion  of  the  acts  of  March 
3,  1875,  and  the  subsequent  amendatory  acts,  that  they  also 
give  jurisdiction  where  the  United  States  are  plaintiffs  or 
petitioners,  and  in  that  discussion  it  has  been  seen  that  the 
courts  have  jurisdiction  of  such  controversies  independent 
of  the  amount  involved.18 

(b)  Suits  at  Common  Law  by  United  States  or  Officers. 

The  third  clause  of  section  629  gives  the  circuit  court  juris- 
diction "of  all  suits  at  common  law,  where  the  United  States, 
or  any  officer  thereof,  suing  under  the  authority  of  any  act 
of  Congress,  are  plaintiffs." 

In  this  respect  the  district  courts  have  concurrent  jurisdic- 
tion, and  reference  is  made  to  the  discussion  there.19 

(c)  Suits  wider  Import,  Internal  Revenue,  and  Postal  Laws. 
The  fourth  clause  of  section  629  gives  the  circuit  court 

original  jurisdiction  "of  all  suits  at  law  or  in  equity,  arising 
under  any  act  providing  for  revenue  from  imports  or  tonnage, 
except  civil  causes  of  admiralty  and  maritime  jurisdiction, 
and  seizures  on  land  or  on  waters  not  within  admiralty  and 
maritime  jurisdiction,  and  except  suits  for  penalties  and  for- 
feitures ;  of  all  causes  arising  under  any  law  providing  in- 
ternal revenue,  and  of  all  causes  arising  under  the  postal 
laws." 

As  to  suits  to  enforce  the  lien  of  the  United  States  upon 
real  estate  for  internal  revenue  taxes,  and  causes  of  action 
arising  under  the  postal  laws,  the  district  courts  have  concur- 
rent jurisdiction.20 

Under  this  clause  the  circuit  courts  have  jurisdiotion  of 
proceedings  in  rem  for  forfeitures  in  violation  of  the  internal 

is  Ante,  c.  10,  ,1.  202. 

i»  Rev.  St.  §  563,  cl.  4  [U.  S.  Comp.  St.  1901,  p.  456];  ante,  c.  4. 

»°  Rev.  St.  §  563,  els.  5-7  [U.  S.  Comp.  St.  1901,  p.  456];   ante,  c.  4 


§  108)  THE    CIVIL   JURISDICTION.  253 

revenue  laws ; 21    also  of  actions  against  a  collector  of  cus- 
toms for  duties  illegally  exacted.* 

(d)  Certain  Suits  for  Penalties. 

The  fifth  clause  of  section  629  gives  the  circuit  court  juris- 
diction "of  all  suits  and  proceedings  for  the  enforcement  of 
any  penalties  provided  by  laws  regulating  the  carriage  of 
passengers  in  merchant  vessels." 

Title  52  of  the  Revised  Statutes,  covering  sections  4463  to 
4500,  and  various  acts  amendatory  thereof,22  prescribe  regu- 
lations for  the  protection  of  passengers  on  merchant  vessels, 
and  the  circuit  courts  have  jurisdiction  to  enforce  the  penal- 
ties therein  prescribed.  The  district  courts  also  would  have 
jurisdiction  to  enforce  such  penalties.23 

There  are  various  federal  statutes  which  also  give  jurisdic- 
tion to  the  circuit  court  for  the  enforcement  of  penalties. 
For  instance,  the  alien  contract  labor  law,  of  February  26, 
1885,  and  the  subsequent  amendments,24  gave  both  the  dis- 
trict and  the  circuit  court  jurisdiction  to  enforce  the  penalties 
thereby  incurred.25  At  the  same  time  the  district  court  is 
primarily  intended  as  the  court  for  the  enforcement  of  penal- 
ties, and  the  circuit  court  has  not  jurisdiction,  unless  under 
the  clear  provision  of  some  statute.  For  instance,  it  has  been 
held  that  the  act  of  March  3,  1875,  as  amended  by  the  subse- 
quent acts,  which  gives  the  circuit  court  civil  jurisdiction  not 
only  on  the  ground  of  citizenship,  but  on  the  ground  that 
the  question  arises  under  the  Constitution  or  laws  of  the 
United  States,  is  not  of  itself  sufficient  to  confer  jurisdiction 
upon  it  for  the  enforcement  of  penalties,  as  it  was  intended 
to  provide  simply  for  its  civil  jurisdiction;  and  penalties,  in 
that  respect,  at  least,  are  criminal,  rather  than  civil,  in  their 

2i  Coffey  v.  U.  S.,  116  U.  S.  427,  6  Sup.  Ct.  432,  29  L.  Ed.  681. 

*  Downes  v.  Bidwell,  1S2  U.  S.  244,  21  Sup.  Ct.  770,  45  L.  Ed.  1088. 

22  U.  S.  Comp.  St.  1901,  p.  3044. 

23  Section  563,  cl.  3  [U.  S.  Comp.  St.  1901,  p.  456]. 

24  U.  S.  Comp.  St.  1901,  p.  1290. 

2  5  LEES  v.  U.  S.,  150  U.  S.  476,  14  Sup.  Ct.  163,  37  L.  Ed.  1150. 


254  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 

nature.  Unless  this  were  true,  the  other  requirements  of 
jurisdiction  named  in  that  act— as,  for  instance,  the  require- 
ment of  $2,000  as  a  limit  in  amount,  would  deprive  the  circuit 
courts  of  a  large  amount  of  jurisdiction.26 

(e)  Condemnation  of  Insurrectionary  Property  as  Prize. 

The  sixth  clause  of  section  629  gives  the  circuit  court  orig- 
inal jurisdiction  "of  all  proceedings  for  the  condemnation  of 
property  taken  as  prize,  in  pursuance  of  section  fifty-three 
hundred  and  eight,  title  'Insurrection.' " 

(/)  Suits  under  Slave-Trade  Laws. 

The  seventh  clause  of  section  629  gives  the  circuit  court 
original  jurisdiction  "of  all  suits  arising  under  any  law  re- 
lating to  the  slave-trade." 

(g)  Suits  on  Debentures. 

The  eighth  clause  of  section  629  gives  the  circuit  court  orig- 
inal jurisdiction  "of  all  suits  by  the  assignee  of  any  deben- 
ture for  drawback  of  duties,  issued  under  any  law  for  the  col- 
lection of  duties,  against  the  person  to  whom  such  debenture 
was  originally  granted,  or  against  any  indorser  thereof,  to 
recover  the  amount  of  such  debenture." 

The  district  court  has  concurrent  jurisdiction  of  this  class 
of  suits.27 

(h)  Patent  and  Copyright  Suits. 

The  ninth  clause  of  section  629  gives  the  circuit  court  orig- 
inal jurisdiction  "of  all  suits  at  law  or  in  equity  arising  under 
the  patent  or  copyright  laws  of  the  United  States." 

This  very  extensive  ground  of  federal  jurisprudence  cannot 
be  discussed  in  the  limits  prescribed  by  this  treatise,  and  must 
be  left  to  books  dealing  specially  with  that  subject. 

It  is,  however,  important  to  bear  in  mind  that  the  mere 
fact  that  a  patent  may  be  incidentally  connected  with  the  liti- 
gation is  not  of  itself  sufficient  to  confer  jurisdiction  under 

20  U.  S.  v.  MOONEY,  116  U.  S.  104,  6  Sup.  Ct.  304,  29  L.  Ed.  550. 
27  Rev.  St.  §  563,  el.  10  [U.  S.  Comp.  St.  1901,  p.  458];   ante,  p.  69. 


§  108)  THE    CIVIL   JURISDICTION.  255 

this  clause.  The  right  of  the  party  must  depend  directly 
upon  the  patent  or  copyright  law  itself,  and  must  not  be 
merely  incidentally  involved.  There  is  a  large  class  of  cases 
which  settle  that  it  does  not  cover  mere  suits  on  contracts 
connected  with  a  patent,  like  questions  of  construction,  or 
questions  involving  the  validity  of  a  license  to  use  a  patent.28 
A  suit  to  enjoin  the  assessment  of  taxes  on  the  ground 
that  they  are  levied  on  patent  rights  is  not  a  suit  arising  under 
the  patent  or  copyright  laws  of  the  United  States,  in  the 
sense  of  this  statute.29  On  the  other  hand,  an  action  for  dam- 
ages for  the  infringement  of  a  copyright,  under  the  provisions 
of  section  4966  of  the  Revised  Statutes,  does  arise  under  the 
patent  or  copyright  laws  of  the  United  States,30  as  also  a 
suit  to  recover  the  penalty  of  one  dollar  for  each  copy  of  the 
copyrighted  article  circulated  contrary  to  the  provisions  of 
section  4965  of  the  Revised  Statutes.31 

(t)  Suits  against  National  Banks. 

The  tenth  clause  of  section  629  gives  the  circuit  court  orig- 
inal jurisdiction  "of  all  suits  by  or  against  any  banking  asso- 
ciation, established  in  the  district  for  which  the  court  is  held, 
under  any  law  providing  for  national  banking  institutions." 

There  is  a  corresponding  provision  in  clause  15,  §  563,  pre- 
scribing the  jurisdiction  of  the  district  courts,  and  the  effect 
of  the  later  acts  upon  that  section  is  discussed  in  that  con- 
nection, and  is  equally  applicable  here.32 

(j)  Suits  to  Enjoin  the  Comptroller  of  the  Currency. 

The  eleventh  clause  of  section  629  gives  the  circuit  court 
original  jurisdiction  "of  all  suits  brought  by  any  banking  as- 

28  Excelsior  Wooden  Pipe  Co.  v.  Bridge  Co.,  185  U.  S.  282,  22  Sup. 
Ct.  681,  46  L.  Ed.  910. 

ze  Holt  v.  Manufacturing  Co.,  176  U.  S.  68,  20  Sup.  Ct  272,  44  L. 
Ed.  374. 

tU.  S.  Comp.  St.  1901,  p.  3415. 

so  Brady  v.  Daly,  175  U.  S.  148,  20  Sup.  Ct.  62,  44  L.  Ed.  109. 

si  Falk  v.  Publishing  Co.  (C.  C.)  100  Fed.  77. 

82  Ante,  pp.  20,  21. 


256  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Ch.  12 

sociation  established  in  the  district  for  which  the  court  is 
held,  under  the  provisions  of  title  'The  National  Banks,'  to 
enjoin  the  Comptroller  of  the  Currency,  or  any  receiver  acting 
under  his  direction,  as  provided  by  said  title." 

The  act  for  which  an  injunction  may  issue  under  this  clause 
is  prescribed  in  section  5237  %  of  the  Revised  Statutes,  and  is 
intended  to  give  a  national  bank  an  opportunity  to  contest 
the  charge  that  it  has  refused  to  redeem  its  circulating  notes. 
The  subsequent  statutes  regulating  the  jurisdiction  in  suits 
by  or  against  national  banks  hardly  seem  to  operate  as  a  re- 
peal of  this  provision,  as  it  is  a  question  arising,  not  so  much 
from  the  citizenship  or  location  of  the  bank,  as  from  the 
character  of  the  charge. 

(k)  Suits  for  Injuries  on  Account  of  Acts  Done  under  Laws 
of  the  United  States. 

The  twelfth  clause  of  section  629  gives  the  circuit  court 
original  jurisdiction  "of  all  suits  brought  by  any  person  to 
recover  damages  for  any  injury  to  his  person  or  property  on 
account  of  any  act  done  by  him,  under  any  law  of  the  United 
States,  for  the  protection  or  collection  of  any  of  the  revenues 
thereof,  or  to  enforce  the  right  of  citizens  of  the  United 
States  to  vote  in  the  several  states." 

This  is  clearly  intended  to  insure  a  trial  of  questions  of  this 
sort  in  the  federal  courts.  Independent  of  this  clause,  the 
federal  courts  would  have  jurisdiction  of  such  a  suit  on  the 
ground  that  it  involved  a  federal  question,  but  in  that  case 
the  other  jurisdictional  requirements,  as  to  amount,  etc., 
would  also  have  to  concur,  whereas  under  this  clause  the 
amount  would  be  immaterial. 

(/)  Suits  to  Recover  Offices. 

The  thirteenth  clause  of  section  629  also  gives  the  circuit 
court  original  jurisdiction  "of  all  suits  to  recover  possession 
of  any  office,  except  that  of  elector  of  President  or  Vice- 
President,  Representative  or  Delegate  in  Congress,  or  mem- 

JU.  S.  Comp.  St.  1901,  p.  3508. 


§  108)  THE    CIVIL    JURISDICTION.  257 

ber  of  a  state  legislature,  authorized  by  law  to  be  brought, 
wherein  it  appears  that  the  sole  question  touching  the  title 
to  such  office  arises  out  of  the  denial  of  the  right  to  vote  to 
any  citizen  offering  to  vote,  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude :  provided,  that  such  jurisdiction 
shall  extend  only  so  far  as  to  determine  the  rights  of  the 
parties  to  such  office  by  reason  of  the  denial  of  the  right 
guaranteed  by  the  Constitution  of  the  United  States,  and 
secured  by  any  law  to  enforce  the  right  of  citizens  of  the 
United  States  to  vote  in  all  the  states." 

The  thirteenth  clause  of  section  563  gave  concurrent  juris- 
diction to  the  district  courts  of  suits  of  this  character,  but 
as  the  right  to  sue  at  all  depended  upon  section  2010  of  the 
Revised  Statutes,  and  that  section  has  been  repealed  by  the 
act  of  February  8,  1894,33  this  clause  falls  with  it. 

(m)  Suits  for  Removal  of  Officers  Holding  Contrary  to  Four- 
teenth Amendment. 

The  fourteenth  clause  of  section  629  gives  the  circuit  court 
original  jurisdiction  "of  all  proceedings  by  the  writ  of  quo 
warranto,  prosecuted  by  any  district  attorney,  for  the  removal 
from  office  of  any  person  holding  office,  except  as  a  member 
of  Congress  or  of  a  state  Legislature,  contrary  to  the  provi- 
sions of  the  third  section  of  the  fourteenth  article  of  amend- 
ment of  the  Constitution  of  the  United  States." 

This  amendment  to  the  Constitution  disqualified  from  hold- 
ing office  any  person  who,  having,  under  certain  circum- 
stances, taken  an  oath  to  support  the  Constitution  of  the 
United  States,  afterwards  took  part  on  the  side  of  the  South 
in  the  Civil  War.  But  as  the  act  of  January  6,  1898,34  gave 
a  general  amnesty  in  all  such  cases,  this  clause  is  obsolete. 

The  fourteenth  clause  of  section  563  gave  the  district  courts- 
concurrent  jurisdiction  in  such  cases. 

■  »  28  Stat  36,  c.  25  [U.  S.  Comp.  St  1901,  p.  1272  et  seq.]. 
•*  30  Stat.  432,  c.  389  [U.  S.  Comp.  St.  1901,  p.  1202]. 
Hughes  Fed.Jub. — 17 


258  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 

(n)  Suits  for  Penalties  under  Laws  to  Enforce  Elective  Fran- 
chise. 

The  fifteenth  clause  of  section  629  gives  the  circuit  court 
original  jurisdiction  "of  all  suits  to  recover  pecuniary  for- 
feitures under  any  act  to  enforce  the  right  of  citizens  of  the 
United  States  to  vote  in  the  several  states." 

These  forfeitures  were  prescribed  by  sections  2006,  2008, 
and  2009  of  the  Revised  Statutes,  but  they  have  been  repealed 
by  the  act  of  February  8,  1894.  This  clause  is  therefore  obso- 
lete.36 

(o)  Suits  to  Redress  the  Deprivation  of  Federal  Rights. 

The  sixteenth  clause  of  section  629  gives  the  circuit  court 
original  jurisdiction  "of  all  suits  authorized  by  law  to  be 
brought  by  any  person  to  redress  the  deprivation,  under 
color  of  any  law,  statute,  ordinance,  regulation,  custom,  or 
usage  of  any  state,  of  any  right,  privilege,  or  immunity,  se- 
cured by  the  Constitution  of  the  United  States,  or  of  any  right 
secured  by  any  law  providing  for  equal  rights  of  citizens  of 
the  United  States,  or  of  all  persons  within  the  jurisdiction  of 
the  United  States."  36 

In  this  respect  the  district  courts  have  concurrent  jurisdic- 
tion under  clause  12  of  section  563.  Some  of  the  provisions 
of  the  civil  rights  act  of  March  1,  1875,87  have  been  held  un- 
constitutional.** 

The  above  clause  does  not  apply  to  a  suit  to  enjoin  a  tax 
assessment  because  it  is  made  upon  a  patent  right,  as  has 
been  seen  in  another  connection.38 


as  28  Stat  36,  c.  25  [U.  S.  Comp.  St.  1901,  p.  1272  et  seq.]. 

se  Holt  v.  Manufacturing  Co.,  176  U.  S.  68,  20  Sup.  Ct.  272,  44  L. 
Ed.  374. 

87  18  Stat.  335,  c.  114  [U.  S.  Comp.  St.  1901,  p.  1259]. 

♦♦Civil  Rights  Cases,  109  U.  S.  3,  3  Sup.  Ct.  18,  27  L.  Ed.  835. 

as  Holt  y.  Manufacturing  Co.,  176  U.  S.  68,  20  Sup.  Ct.  272,  44  L. 
Ed.  374. 


§  108)  THE    CIVIL   JURISDICTION.  259 

(p)  Suits  on  Account  of  Injuries  by  Conspirators  in  Certain 
Cases. 

The  seventeenth  clause  of  section  629  gives  the  circuit  court 
original  jurisdiction  "of  all  suits  authorized  by  law  to  be 
brought  by  any  person  on  account  of  any  injury  to  his  person 
or  property,  or  of  the  deprivation  of  any  right  or  privilege  of 
a  citizen  of  the  United  States,  by  any  act  done  in  furtherance 
of  any  conspiracy  mentioned  in  section  nineteen  hundred  and 
eighty,  title,  'Civil  Rights.'  " 

The  eleventh  clause  of  section  563  gave  the  district  courts 
concurrent  jurisdiction  of  these  matters. 

(q)  Suits  against  Persons  Having  Knowledge  of  Such  Con- 
spiracy. 

The  eighteenth  clause  of  section  629  gives  the  circuit  court 
jurisdiction  "of  all  suits  authorized  by  law  to  be  brought 
against  any  person  who,  having  knowledge  that  any  of  the 
wrongs  mentioned  in  section  nineteen  hundred  and  eighty, 
are  about  to  be  done,  and,  having  power  to  prevent  or  aid  in 
preventing  the  same,  neglects  or  refuses  so  to  do,  to  recover 
damages  for  any  such  wrongful  act." 

These  suits  are  authorized  by  section  1981  of  the  Revised 
Statutes.39 

(r)  Suits  against  Officers  and  Owners  of  Vessels  for  Negli- 
gence Causing  Death. 

The  nineteenth  clause  of  section  629  gives  the  circuit  court 
original  jurisdiction  "of  all  suits  and  proceedings  arising  un- 
der section  fifty-three  hundred  and  forty-four,  title  'Crimes,' 
for  the  punishment  of  officers  and  owners  of  vessels,  through 
whose  negligence  or  misconduct  the  life  of  any  person  is  de- 
stroyed." 

Section  5344,  alluded  to,40  makes  the  owners  and  officers 
of  steamboats  guilty  of  manslaughter  in  certain  cases. 


3  9  U.  S.  Comp.  St.  1901,  p.  12U3. 
40  U.  S.  Comp.  St.  1901,  p.  3629. 


2G0  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 

(s)  Suits  against  the  United  States. 

The  Tucker  act  of  March  3,  1887,"  gives  the  right  to  sue 
the  United  States  in  the  district  of  the  plaintiff's  residence  tor 
certain  causes  of  action  arising  out  of  contract.  If  the  cause 
of  action  is  under  one  thousand  dollars,  the  district  court 
has  jurisdiction,  and  if  it  is  over  one  thousand  dollars,  and 
does  not  exceed  ten  thousand  dollars,  the  circuit  court  has 
jurisdiction,  and  both  courts  in  such  cases  have  concurrent 
jurisdiction  with  the  court  of  claims. 

The  circumstances  under  which  suit  can  be  brought  by 
virtue  of  this  statute,  and  the  proceedings  thereunder,  have 
been  discussed  in  connection  with  the  jurisdiction  of  the  dis- 
trict courts.42  Those  causes  of  action  sound  in  money,  and 
do  not  authorize  indiscriminate  suits  against  the  United 
States.  There  is,  however,  a  special  act  authorizing  a  suit 
for  partition  of  lands  of  which  the  United  States  is  one  of 
the  tenants  in  common  or  joint  tenants.  This  is  the  act  of 
May  17,  1898. *8  Its  first  section  provides  "that  the  several 
circuit  courts  of  the  United  States  shall  have  jurisdiction  of 
suits  in  equity,  brought  by  any  tenant  in  common,  or  joint 
tenant,  for  the  partition  of  lands  in  cases  where  the  United 
States  is  one  of  such  tenants  in  common  or  joint  tenants, 
such  suit  to  be  brought  in  the  circuit  court  of  the  district  in 
which  such  land  is  situated." 

Its  second  section  provides  for  service  of  notice  on  the 
United  States  by  causing  a  copy  of  the  bill  to  be  served  upon 
the  local  district  attorney,  and  by  mailing  a  copy  by  regis- 
tered letter  to  the  Attorney  General  of  the  United  States. 
It  then  becomes  the  duty  of  the  local  district  attorney  to  ap- 
pear within  sixty  days  after  such  service,  unless  the  time  is 
extended,  and  defend.     And  it  authorizes  the  Attorney  Gen- 

«i  U.  S.  Gomp.  St.  1901,  p.  752. 

42  Ante,  p.  161.    See,  also,  U.  S.  v.  Harmon,  147  U.  S.  268,  13  Sup. 
Ct  327,  37  L.  Ed.  164;   U.  S.  v.  Morgan,  99  Fed.  570,  39  C.  C.  A.  653. 
48  30  Stat  416,  c.  339  [U.  S.  Coinp.  St.  1901,  p.  516]. 


§  108)  THE    CIVIL   JURISDICTION.  201 

eral,  in  his  discretion,  to  bid  for  the  property  in  case  a  sale 
for  partition  is  ordered. 

(t)  Suits  to  Abate  Unlawful  Inclosures  of  Public  Lands. 

The  act  of  February  25,  1885, 4*  confers  upon  the  circuit 
court  jurisdiction  for  this  purpose.  The  district  courts  have 
concurrent  jurisdiction  in  such  cases,  and  reference  is  made 
to  the  discussion  of  the  question  in  that  connection.48 

(u)  Suits  under  Interstate  Commerce  Act. 

The  tenth  section  of  the  interstate  commerce  act,  with  the 
subsequent  amendments,  gives  jurisdiction  to  both  the  dis- 
trict and  the  circuit  courts  of  certain  suits  for  its  violation, 
including  the  right  to  mandamus  in  certain  cases  provided.46 

(v)  Condemnation  Proceedings. 

The  circuit  courts  have  concurrent  jurisdiction  with  the  dis- 
trict courts  in  these  matters,  as  has  been  seen  in  discussing 
the  question  in  connection  with  the  jurisdiction  of  the  district 
courts.47 

(w)  Habeas  Corpus. 

Under  section  751  et  seq.  of  the  Revised  Statutes,  the  cir- 
cuit courts  have  jurisdiction  concurrent  with  the  district 
courts  of  habeas  corpus  proceedings.  Reference  is  made  to 
the  discussion  of  the  subject  in  connection  with  the  jurisdic- 
tion of  the  district  courts.48 

(x)  Writs  of  Ne  Exeat. 

Under  section  717  of  the  Revised  Statutes,49  it  is  provided : 
"Writs  of  ne  exeat  may  be  granted  by  any  justice  of  the  Su- 
preme Court,  in  cases  where  they  might  be  granted  by  the 
Supreme  Court;    and  by  any  circuit  court  justice  or  circuit 

"  23  Stat  321,  c.  149  [U.  S.  Comp.  St.  1901,  p.  1524]. 
4»  Ante,  p.  169. 

4«  24  Stat  379  [U.  S.  Comp.  St  1901,  p.  3154];   25  Stat  855  [U.  S. 
Comp.  St.  1901,  p.  3172]. 
4  7  Ante,  p.  171. 
4  8  Ante,  p.  174. 
"  U.  S.  Comp.  St.  1901,  p.  580. 


262  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 

judge,  in  cases  where  they  might  be  granted  by  the  court  of 
which  he  is  a  judge.  But  no  writ  of  ne  exeat  shall  be  grant- 
ed, unless  a  suit  in  equity  is  commenced,  and  satisfactory 
proof  is  made  to  the  court  or  judge  granting  the  same,  that 
the  defendant  designs  quickly  to  depart  from  the  United 
States." 

It  has  been  held  that  the  jurisdiction  of  the  circuit  court  is 
not  exclusive  of  the  district  court,  but,  under  section  716, 
giving  the  Supreme  Court,  circuit  courts,  and  district  courts 
power  to  issue  writs  necessary  for  the  exercise  of  their  re- 
spective jurisdictions,  the  district  court  may  also  issue  it  in 
connection  with  a  case  in  that  court. 

Nor  is  the  right  to  issue  it  limited  to  the  progress  of  the 
case  before  final  decree,  but  it  may  be  issued  after  final 
decree,  as  a  means  of  preventing  a  debtor  from  concealing 
his  property  and  absconding.60 

This  writ,  however,  is  not  a  matter  of  right,  and  the  court, 
in  its  discretion,  may  refuse  to  issue  it  if  the  inconvenience 
to  the  defendant  is  great,  and  the  plaintiff  has  equally  con- 
venient methods  of  protecting  himself.  For  instance,  where 
a  citizen  of  New  York  applied  to  a  United  States  court  in 
Maine  to  issue  it  against  a  Canadian,  who  was  merely  there 
on  a  vacation,  and  who  was  easily  suable  in  Quebec,  in  such 
case  the  judge  refused  to  issue  it." 

The  usual  condition  of  the  bond  taken  from  the  defendant 
seized  under  this  writ  is  that  he  will  be  amenable  to  the  fur- 
ther orders  and  processes  of  the  court  issuing  it,  though  it 
would  not  be  improper  to  make  the  bond  conditioned  that 
he  should  perform  the  decree  of  the  court.52 

(xx)  Suits  under  the  Anti-Trust  Acts. 

Procedures  for  violation  of  these  acts  5S  may  be  taken  in 
the  circuit  courts,  and  there  have  been  a  number  of  them.     As 

oo  Shainwald  v.  Lewis  (D.  C.)  46  Fed.  839. 
si  Harrison  v.  Graham  (C.  C.)  110  Fed.  896. 

52  Griswold  v.  Hazard,  141  U.  S.  260,  11  Sup.  Ct  972.  35  L.  Ed. 
678. 

53  Act  July  2.  1890.  c.  647,  §  4,  26  Stat.  200  [U.  S.  Comp.  St.  1901,  ' 


§  108)  THE    CIVIL   JURISDICTION.  2G3 

they  are  based  upon  the  power  of  Congress  to  regulate  inter- 
state commerce,  it  was  first  decided  that  they  did  not  apply 
to  trusts  to  regulate  a  mere  local  product,  which  has  not  be- 
come the  subject  of  commerce  between  the  states.54 

The  act  does  apply  to  agreements  regulating  rates,  and  to 
a  pooling  agreement  between  different  common  carriers  en- 
gaged in  interstate  commerce.65  It  applies  only  to  agree- 
ments directly  connected  with  interstate  commerce,  including 
the  transportation,  purchase,  sale,  and  exchange  of  commodi- 
ties between  citizens  of  different  states,  and  the  instrumental- 
ities by  which  such  commerce  is  conducted.56 

It  applies  to  an  agreement  between  private  corporations 
engaged  in  different  states  in  the  manufacture  and  marketing 
among  the  different  states  of  iron  pipe.87 

It  applies  to  an  agreement  between  manufacturers  and  deal- 
ers in  tile  grates  and  mantels  in  the  different  states,  and  con- 
trolling the  price  of  products  in  those  states.58 

It  applies  to  the  organization  of  a  holding  corporation 
which  bought  up  a  controlling  interest  in  two  competing  lines 
of  transportation  for  the  purpose  of  preventing  competition 
between  them.68 


p.  3201];  Act  Aug.  27,  1894,  c.  349,  §  73,  28  Stat.  570  [U.  S.  Comp. 
St.  1901,  p.  3202]. 

b*  U.  S.  v.  E.  C.  Knight  Co.,  156  U.  S.  1,  15  Sup.  Ct.  249,  39  L. 
Ed.  325. 

ss  u.  S.  v.  Association,  166  U.  S.  290,  17  Sup.  Ct.  540,  41  L.  Ed. 
1007;  U.  S.  v.  Association,  171  U.  S.  505,  569,  571,  19  Sup.  Ct.  25,  43 
L.  Ed.  259. 

ee  Hopkins  v.  U.  S.,  171  U.  S.  578,  19  Sup.  Ct.  40,  43  L.  Ed.  290; 
Anderson  v.  U.  S.,  171  U.  S.  604,  19  Sup.  Ct.  50,  43-  L.  Ed.  300. 

57  Addyston  Pipe  &  Steel  Co.  v.  U.  S.,  175  U.  S.  211,  20  Sup.  Ct.  96, 
44  L.  Ed.  136. 

ss  Montague  &  Co.  v.  Lowry,  193  U.  S.  38,  24  Sup.  Ct.  307,  48  L. 
Ed.  608. 

59  NORTHERN  SECURITIES  CO.  v.  U.  S.  (C.  G.)  120  Fed.  721; 
ID.,  19?  U.  S.  197,  24  Sup.  Ct.  436,  48  L.  Ed.  679. 


2G4  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Ch.  12 

(y)  Suits  to  Remedy  or  Prevent  Obstructions  to  Navigation. 

The  act  of  March  3,  1899,  forbidding  obstructions  to  navi- 
gation,60 gave  jurisdiction  to  the  circuit  courts  to  enforce 
the  removal  by  injunction  against  any  structures  erected  in 
violation  of  the  provisions  of  this  act.  This  provision  was 
about  the  same  as  the  corresponding  provision  of  the  previous 
act  of  September  19,  1890,  and  this  section  only  authorized 
suits  by  the  United  States  under  the  limitations  therein  pre- 
scribed. Under  these  acts  there  have  been  many  cases  re- 
ported in  the  books  in  which  relief  of  this  sort  has  been  given 
by  the  courts.  For  instance,  where  a  railroad  embankment, 
though  not  directly  on  a  navigable  river,  caused  a  rise  of  part 
of  the  bed  of  the  river,  due  to  the  pressure  of  a  substratum 
from  extra  weight  of  the  fill,  and  this  resulted  in  an  inter- 
ference with  the  navigation,  a  suit  in  the  name  of  the  United 
States  to  enjoin  the  continuance  of  the  obstruction  was  enter- 
tained.61 

So  a  suit  to  prevent  the  diversion  of  water  from  a  stream 
to  such  an  extent  as  to  substantially  diminish  its  navigation 
is  sustainable  by  the  United  States.62 

Independent  of  the  special  remedy  given  by  this  section, 
however,  suits  will  lie  on  behalf  of  private  parties  if  they  can 
show  special  injury  arising  from  an  obstruction  for  which 
defendants  are  made  liable  by  this  and  similar  acts,  as  such 
suits  would  involve  a  federal  question.63 

In  Harrison  v.  Hughes  64  a  libel  in  personam  was  sustained 
by  the  owners  of  a  steamer  for  injuries  caused  by  her  running 
against  an  unlighted  breakwater  which  was  being  constructed 

so  30  Stat.  1151,  c.  425  [U.  S.  Comp.  St.  1901,  p.  3540]. 

si  Northern  Pac.  Ry.  Co.  v.  U.  S.,  104  Fed.  691,  44  O.  O.  A.  135. 
59  L.  R.  A.  80. 

02  TJ.  S.  v.  Irrigation  Co.,  174  U.  S.  G90,  19  Sup.  Ct.  770,  43  L.  Ed. 
1136. 

«3  Nester  v.  Match  Co.,  105  Fed.  567,  44  C.  C.  A.  606,  52  L.  R.  A. 
950;   E.  A.  Chatfield  Co.  v.  New  Haven  (C.  C.)  110  Fed.  788. 

o*  (D.  C.)  110  Fed.  545;   Id.,  125  Fed.  860,  60  C.  C.  A.  442. 


§  108)  THE    CIVIL   JURISDICTION.  265 

by   the    defendants    as    government   contractors.     This    suit 
arose  before  the  above  act. 

(yy)  Bankruptcy  Suits. 

Section  630  of  the  Revised  Statutes  provides:  "The  cir- 
cuit courts  shall  have  jurisdiction  in  matters  in  bankruptcy, 
to  be  exercised  within  the  limits  and  in  the  manner  provided 
by  law." 

Section  23  of  the  bankruptcy  act  of  July  1,  1898,"  as 
amended  by  the  act  of  February  5,  1903,  §  8,68  provides  as  fol- 
lows : 

"(a)  The  United  States  circuit  courts  shall  have  jurisdic- 
tion of  all  controversies  at  law  and  in  equity,  as  distinguished 
from  proceedings  in  bankruptcy,  between  trustees  as  such  and 
adverse  claimants  concerning  the  property  acquired  or  claim- 
ed by  the  trustees,  in  the  same  manner  and  to  the  same  extent 
only  as  though  bankruptcy  proceedings  had  not  been  insti- 
tuted and  such  controversies  had  been  between  the  bankrupts 
and  such  adverse  claimants. 

"(b)  Suits  by  the  trustee,  shall  only  be  brought  or  prose- 
cuted in  the  courts  where  the  bankrupt,  whose  estate  is  being 
administered  by  such  trustee,  might  have  brought  or  prose- 
cuted them  if  proceedings  in  bankruptcy  had  not  been  insti- 
tuted, unless  by  consent  of  the  proposed  defendant,  except 
suits  for  the  recovery  of  property  under  section  sixty,  subdi- 
vision 'b,'  and  section  sixty-seven,  subdivision  'e.' 

"(c)  The  United  States  circuit  courts  shall  have  concurrent 
jurisdiction  with  the  courts  of  bankruptcy,  within  their  re- 
spective territorial  limits,  of  the  offenses  enumerated  in  this 
act." 

But  while  the  circuit  courts  have  jurisdiction  of  questions 
growing  out  of  the  bankruptcy  act  when  they  are  federal  ques- 
tions, and  also  under  the  above-quoted  act,  it  must  be  remem- 
bered that  they  are  not  courts  of  bankruptcy,  in  the  sense 


«b  U.  S.  Comp.  St.  1901,  p.  3431. 

«e  U.  S.  Comp.  St.  Supp.  1903,  p.  413. 


2G6  CIRCUIT    COURT ORIGINAL    JURISDICTION.  (Ch.  12 

that  they  have  no  powers  of  administration  like  the  powers 
vested  in  those  courts. 

(z)  Suits  on  Bonds  of  Contractors  for  Paper  for  Public  Print- 
ing. 
Section  10  of  the  act  of  January  12,  1895,67  gives  jurisdic- 
tion against  a  defaulting  contractor  and  his  sureties,  in  cer- 
tain cases  arising  under  this  act,  to  the  circuit  courts. 

(zz)  Review  of  Decisions  of  Appraisers. 

Section  15  of  the  act  of  June  10,  1890, 88  gives  the  circuit 
courts  jurisdiction  to  review  decisions  of  boards  of  apprais- 
ers as  to  certain  questions  of  duties,  and  provides  for  eventually 
taking  the  question  to  the  Supreme  Court  itself  under  certain 
circumstances. 


JURISDICTION  AS  INCIDENT  TO  JURISDICTION  ON  THE 
GROUNDS  PREVIOUSLY  DISCUSSED. 

109.  The  federal  courts  have  jurisdiction  in  a  large  class  of 
matters  on  the  ground  that  the  same  is  a  mere  inci- 
dent or  seqnel  to  jurisdiction  already  acquired  under 
some  of  the  preceding  heads,  although  they  -would  not 
have  jurisdiction  of  such  matters  as  an  original  prop- 
osition. In  other  words,  in  these  ancillary  or  inci- 
dental proceedings  the  question  of  citizenship  or 
amount  involved  is  immaterial,  and  the  jurisdiction  is 
conferred  hy  reason  of  the  principle  that  it  is  neces- 
sary as  an  incident  to  the  main  case,  and  in  order  to 
carry  out  the  ohjects  of  the  main  case  and  give  com- 
plete relief,  or  to  settle  all  questions  necessarily  de- 
pendent upon  the  main  case.69 

67  28  Stat.  602,  c.  23  [U.  S.  Comp.  St.  1901,  p.  2536  et  seq.]. 

ss  U.  S.  Comp.  St.  1901,  p.  1933. 

69  Cornpton  v.  Jesup,  68  Fed.  263,  15  C.  C.  A.  397;  Id.,  167  U.  S. 
1,  17  Sup.  Ct.  795,  42  L.  Ed.  55  (the  questions  discussed  in  the  Su- 
preme Court  opinion  are  not  in  point  on  this  special  question) ; 
WHITE  v.  EWING,  159  U.  S.  36,  15  Sup.  Ct.  1018,  40  L.  Ed.  67; 
People's  Sav.  Inst.  v.  Miles,  76  Fed.  252,  22  C.  C.  A.  152;  Peck  v. 
Elliott,  79  Fed.  10,  24  C.  C.  A.  425,  38  L.  R.  A.  616 ;  Hill  v.  Kuhlman, 
87  Fed.  498,  31  C.  C.  A.  87. 


§  109)  INCIDENTAL   JURISDICTION.  2G7 

A  common  branch  of  this  ancillary  jurisdiction  is  those 
cases  where  some  additional  suit  is  brought  or  proceeding 
instituted  to  carry  out  the  object  of  the  main  litigation,  or  to 
realize  its  fruits.  For  instance,  in  Stewart  v.  Dunham. T0 
which  was  a  creditors'  bill  to  set  aside  an  alleged  fraudulent 
conveyance,  it  was  held  that  the  admission  of  additional  cred- 
itors as  co-complainants  did  not  defeat  the  jurisdiction,  but 
that  the  court  had  power  to  consider  their  claims  independ- 
ent of  their  citizenship  or  the  amount  involved. 

In  Gnmbel  v.  Pitkin,71  attachments  had  issued  from  a 
United  States  court,  and  property  had  been  seized  thereun- 
der. Then  a  creditor  in  a  state  court  issued  an  attachment, 
and  placed  it  in  the  hands  of  the  sheriff,  and  had  notice  of 
this  attachment  served  upon  the  marshal,  but  without  any 
seizure,  as  that  could  not  have  been  accomplished.  He  then 
asked  leave  to  intervene  in  the  federal  court  case,  and  he  was 
allowed  to  do  so,  though  he  was  not  a  party  at  all  to  the  first 
litigation,  on  the  ground  that  his  proceeding  was  a  dependent 
bill ;  that  he  was  obliged  to  come  into  the  federal  court,  be- 
cause he  could  really  go  nowhere  else;  and  that  the  court 
having  jurisdiction  of  the  main  case  had  jurisdiction  to  pass 
upon  all  questions  incidentally  involved.  From  this  it  ap- 
pears that  a  bill  may  be  ancillary  or  dependent  even  though 
the  parties  may  be  different  from  the  parties  in  the  first  suit. 

Jn  Root  v.  Woolworth  72  a  decree  had  been  entered  settling 
the  title  to  land,  and  a  conveyance  by  a  commissioner  of  court 
had  been  made  in  pursuance  of  that  decree.  The  defendant 
in  the  first  case  disregarded  the  decree,  and  still  asserted  title 
to  the  land.  It  was  held  that  a  bill  would  lie  by  an  assignee 
of  the  first  plaintiff  to  enjoin  the  defendant  from  such  asser- 
tion of  title,  and  that  such  bill  was  supplementary  and  ancil- 
lary. 

to  115  u.  S.  61,  5  Sup.  Ct.  1163,  29  L.  Ed.  329. 
7i  124  U.  S.  131,  8  Sup.  Ct.  379,  31  L.  Ed.  374. 

7  2  ROOT  v.  WOOLWORTH,  150  U.  S.  401,  14  Sup.  Ct.  136,  37  L. 
Ed.  1123. 


2G8  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 

In  White  v.  Ewing 78  the  assets  of  a  corporation  were  being 
administered  by  a  court.  The  receiver  brought  a  number  of 
claims  against  different  debtors  to  the  corporation  all  in  one 
proceeding,  many  of  whom  owed  less  than  two  thousand  dol- 
lars. There  was  no  demurrer  as  to  the  joinder  of  all  of  these 
defendants  in  one  proceeding.  It  was  held  that  the  court 
had  jurisdiction  of  these  proceedings,  as  ancillary  to  the 
main  suit,  whether  or  not  it  had  jurisdiction  of  them  as  inde- 
pendent proceedings. 

In  New  Orleans  v.  Fisher  T4  a  judgment  creditor  of  New 
Orleans  filed  a  bill  against  the  school  board  of  that  city  to 
force  an  accounting  of  the  collections  of  school  taxes.  Juris- 
diction was  sustained  as  ancillary  to  the  enforcement  of  the 
main  judgment  which  had  been  obtained  in  the  United  States 
court,  though  the  school  board  was  not  a  party  to  the  first 
litigation. 

In  Phelps  v.  Mutual  Reserve  Fund  Life  Association  7B  there 
was  a  proceeding  in  a  state  court  against  a  nonresident  insur- 
ance company,  against  whom  judgment  had  been  obtained, 
which  looked  to  the  appointment  of  a  receiver  and  impound- 
ing premiums  due  it.  This  suit  was  removed  into  the  federal 
court,  where  it  was  held  that  it  was  ancillary  to  the  main  suit, 
and  sustainable  on  that  ground. 

Under  this  principle  the  court,  having  obtained  jurisdic- 
tion in  the  main  cause,  has  the  right  to  consider  any  inci- 
dental questions  arising  thereunder,  or  brought  to  its  atten- 
tion by  petition  or  otherwise,  which  are  naturally  connected 
with  the  main  litigation,  as  in  this  way  complete  and  speedy 
justice  can  best  be  done. 

In  Blake  v.  Pine  Mountain  Iron  &  Coal  Company  7e  it  was 

78  WHITE  v.  EWING,  159  U.  S.  36,  15  Sup.  Ct.  1018,  40  L.  Ed.  67. 

t*  180  U.  S.  185,  21  Sup.  Ct.  347,  45  L.  Ed.  485. 

to  112  Fed.  453,  50  C.  C.  A.  339,  61  L.  R.  A.  717;  Mutual  Reserve 
Fund  Life  Ass'n  v.  Phelps,  190  U.  S.  147,  23  Sup.  Ct  707,  47  L.  Ed. 
987. 

7  a  76  Fed.  624,  22  C.  C.  A.  430. 


§  109)  INCIDENTAL  JURISDICTION.  2G9 

decided  that,  when  property  was  in  charge  of  a  receiver  of 
a  federal  court,  it  could  consider  the  claims  of  all  parties  there- 
by affected  or  interested  in  the  property,  regardless  of  the 
grounds  of  jurisdiction  in  the  main  case,  as  this  was  neces- 
sarily incidental  to  the  main  case. 

In  Central  Trust  Co.  v.  Benedict 7T  a  trust  company  held  a 
certain  fund  as  custodian.  In  a  foreclosure  receivership  suit 
it  was  held  that  the  court  could  consider  the  petition  of  the 
trustee  for  compensation  out  of  that  fund  as  an  incident  to 
the  main  cause. 

In  Central  Trust  Co.  v.  Bridges  T8  a  suit  for  foreclosure 
was  pending.  The  court  permitted  parties  who  claimed  me- 
chanics' liens  to  come  in  by  petition,  and  decided  that  it  had 
the  right  to  consider  their  claims  as  ancillary  to  the  main  liti- 
gation. 

In  Jenks  v.  Brewster  70  a  suit  to  construe  and  enforce  a 
decree  of  a  federal  court  was  held  to  be  ancillary  to  the  main 
suit. 

Under  this  principle  the  court  may  protect  property  under 
its  control  from  proceedings  by  adverse  claimants.  It  has 
been  seen  from  the  above  cases  that  such  adverse  claimants 
have  the  right  to  come  into  the  federal  court  for  relief.  The 
court,  however,  could  not  only  give  them  the  right  to  inter- 
vene, but  can  compel  them  to  do  so  if  they  attempt  in  any 
way  to  interfere  with  the  property  under  its  control,  and  this 
applies  to  a  claim  for  taxes  by  a  state  against  the  property.80 

The  court,  under  this  principle,  can  take  jurisdiction  of  a 
suit  on  an  attachment  bond  given  in  the  main  proceeding. 
Independent  of  this  principle  of  ancillary  process,  such  a  suit 
would  naturally  involve  a  federal  question ;   but,  if  this  prin- 

T7  78  Fed.  19S,  24  C.  G.  A.  56. 
T8  57  Fed.  753,  6  C.  C.  A.  539. 
to  (C.  C.)  96  Fed.  625. 

so  Memphis  Sav.  Bank  v.  Houehens,  115  Fed.  96,  52  C.  C.  A.  176 ; 
Fx  parte  Tyler,  149  U.  S.  164,  13  Sup.  Ct.  785,  37  L.  Ed.  689. 


270  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 

ciple  alone  could  be  applied  to  sustain  jurisdiction,  then  the 
amount  involved  would  have  to  be  two  thousand  dollars.  If, 
however,  such  proceedings  are  sustainable  on  the  ground  that 
they  are  ancillary,  these  other  requisites  of  jurisdiction  which 
apply  to  the  main  suit  do  not  apply.81 

One  of  the  most  common  and  useful  grounds  of  ancillary 
jurisdiction  in  the  federal  courts  is  the  case  where  property 
which  extends  into  more  than  one  district,  or  even  into  more 
than  one  state,  comes  into  the  possession  of  the  federal  court 
for  purposes  of  administration.  The  best  known  instances 
of  these  proceedings  are  those  of  railroads  whose  lines  run 
through  different  states  or  districts.  A  great  advantage  of 
the  federal  courts,  which  has  led  to  these  suits  being  in  a 
great  majority  of  cases  brought  there,  is  this  very  fact — 
that,  when  one  federal  court  takes  jurisdiction  of  such  a  pro- 
ceeding, ancillary  proceedings  can  be  filed  in  every  other  dis- 
trict or  state  where  the  defendant  may  have  property.  In 
such  case  one  district  is  treated  as  the  main  district.  The 
orders  and  various  steps  in  the  proceeding  are  taken  in  that 
district,  and  the  judges  in  the  other  districts  do  little  more 
than  merely  register  the  decrees  of  the  first  district.  It  is  a 
well-settled  practice  in  such  case  that  the  claims  against  the 
defendant  should  be  asserted  in  the  main  case,  and  not  in  the 
ancillary  district.82 

It  is  largely  a  question  of  convenience  which  should  be  se- 
lected as  the  main  district  in  the  first  instance.  As  a  rule 
the  best  district  to  select  is  the  district  of  the  defendant's 
principal  office ;  but  where  suit  is  first  brought  in  another 
district,  and  the  defendant  company  has  appeared,  or  legal 
service  has  been  obtained  upon  it,  that  may  be  treated  as  the 
main  district.83 


si  Files  v.  Davis  (C.  C.)  118  Fed.  465. 

«2  Central  Trust  Co.  v.  Railroad  Co.  (C.  C.)  30  Fed.  895;    Central 
Trust  Co.  v.  Milling  Co.  (C.  C.)  112  Fed.  371. 

ss  Farmers'  Loan  &  Trust  Co.  v.  Railroad  Co.  (C.  C.)  72  Fed.  26. 


§  109)  INCIDENTAL  JURISDICTION.  271 

Mandamus  Proceedings. 

The  writ  of  mandamus  in  the  federal  courts  is  not  an  original 
proceeding  at  law  or  in  equity,  and  therefore  the  courts  have 
no  jurisdiction  in  proceedings  of  that  nature  as  original  pro- 
ceedings.84 

In  these  courts  mandamus  is  a  dependent  or  ancillary  pro- 
ceeding, and  can  be  used  only  in  that  way,  and  when  the  court 
has  already  acquired  jurisdiction  in  the  main  case  on  some 
well-established  ground  of  federal  jurisdiction.  But  its  use 
in  this  way  in  the  nature  of  a  writ  of  execution,  or  a  writ  to 
effectuate  the  relief  granted  in  the  main  suit,  is  quite  common. 
For  instance,  in  Labette  County  Com'rs  v.  U.  S.,80  where 
judgment  had  been  obtained  in  a  federal  court  against  a  town- 
ship, a  mandamus  proceeding  against  the  officers  charged 
with  the  duty  of  satisfying  such  judgment  was  sustained,  to 
enforce  the  judgment,  on  the  ground  that  it  was  such  an  ancil- 
lary proceeding,  though  the  parties  defendant  to  the  writ  were 
not  parties  to  the  original  suit. 

In  Hair  v.  Burnell 86  the  judgment  had  been  obtained  in  a 
federal  court  against  a  stockholder  of  a  corporation,  and  his 
stock  had  been  garnished  through  the  corporation,  and  sold 
under  execution.  The  court  sustained  a  mandamus  by  the 
purchaser  of  the  stock  against  the  corporation  to  compel  its 
transfer  on  the  books  to  the  purchaser. 

In  Board  of  Liquidation  of  City  of  New  Orleans  v.  U.  S.87 
a  proceeding  by  mandamus  against  the  board  of  liquidation  to 
enforce  a  federal  judgment  against  the  city  was  sustained, 
though  the  board  itself,  as  a  corporation,  was  not  a  party  to 
the  original  suit. 

In  this  important  suit  the  judges  of  the  different  circuits  met  at  a 
common  point,  conferred  together,  and  agreed  upon  a  uniform  decree. 

84  ROSENBAUM  v.  BAUER,  120  U.  S.  450,  7  Sup.  Ct.  633,  30  L. 
Ed.  743 ;  Indiana  v.  Railway  Co.  (C.  C.)  85  Fed.  1. 

ss  112  TJ.  S.  217,  5  Sup.  Ct.  10S,  28  L.  Ed.  698. 

8«  (C.  C.)  106  Fed.  280. 

87  108  Fed.  689,  47  C.  C.  A.  5S7. 


272  CIRCUIT    COURT — ORIGINAL   JURISDICTION.  (Ch.  12 

Scire  Facias. 

The  federal  courts  have  jurisdiction  of  a  scire  facias  not 
only  by  virtue  of  section  716,  but  also  because  this,  too,  is 
considered  an  ancillary  or  dependent  proceeding.  For  in- 
stance, in  Pullman's  Palace  Car  Co.  v.  Washburn  8*  such  a 
proceeding  was  sustained,  which  was  instituted  to  enforce 
liability  for  costs  obtained  on  a  judgment  in  the  federal  court. 

So,  too,  in  Lafayette  Co.  v.  Wonderly  89  a  scire  facias  to 
revive  a  personal  judgment  of  the  federal  courts  was  sustained 
as  an  ancillary  proceeding. 

A  common  class  of  ancillary  proceedings  is  those  insti- 
tuted for  the  purpose  of  seeking  protection  against  the  orig- 
inal suit  on  grounds  which  could  not  have  been  raised  in  such 
suit.  The  best-known  class  of  this  jurisdiction  is  bills  to 
enjoin  judgments  obtained  in  federal  courts.  The  only  rem- 
edy against  such  judgments  is  in  the  federal  courts,  and  hence 
such  bills  are  sustainable,  and  are  considered  ancillary.80 

The  same  principle  applies  to  bills  to  enjoin  suits  which 
have  not  proceeded  to  judgment.  The  federal  courts  have 
jurisdiction  of  such  proceedings — in  fact,  they  are  the  only 
courts  which  would  have  such  jurisdiction,  as  state  courts 
cannot  enjoin  proceedings  in  federal  courts.  For  instance, 
in  Bradshaw  v.  Miners'  Bank  01  a  bill  to  enjoin  the  prosecu- 
tion of  a  creditors'  suit  was  held  ancillary  to  the  main  suit, 
and  sustainable  on  that  ground. 

In  Virginia-Carolina  Chemical  Co.  v.  Home  Ins.  Co.92  the 
insured  had  brought  separate  actions  against  many  insurance 
companies,  who  had  separate  policies  which  provided  that 
the  companies  should  be  liable  only  for  their  proportionate 


ss  (C.  C.)  66  Fed.  790;  Washburn  v.  Car  Co.,  76  Fed.  1005,  21  C. 
C.  A.  598. 

ss  92  Fed.  313,  34  O.  C.  A.  360. 

90  JOHNSON  v.  CHRISTIAN,  125  U.  S.  642,  8  Sup.  Ct  989,  31 
L.  Ed.  820 ;  Jones  v.  Andrews,  10  Wall.  327,  19  L.  Ed.  935. 

9i  81  Fed.  902,  26  C.  C.  A.  673. 

92  113  Fed.  1,  51  C.  C.  A.  21. 


§  109)  INCIDENTAL   JURISDICTION.  273 

share  of  the  loss.  It  was  held  that  a  bill  to  adjust  the  equities 
of  the  insurance  companies  as  among  themselves  and  against 
the  insured,  and  to  enjoin  the  prosecution  of  the  common-law 
suits,  would  lie  as  ancillary  to  the  main  suit. 

The  same  principle  applies  to  suits  to  set  aside  decrees  or 
to  construe  them.93 

In  the  case  of  Minnesota  Co.  v.  St.  Paul  Co.94  the  court, 
in  denning  these  ancillary  suits,  is  careful  to  call  attention  to 
the  fact  that  they  may  be  ancillary  in  the  federal  courts,  even 
though,  under  the  common-law  rules  of  federal  procedure, 
they  would  be  treated  as  original.  It  says :  "But  we  think 
that  the  question  is  not  whether  the  proceeding  is  supple- 
mental and  ancillary,  or  is  independent  and  original,  in  the 
sense  of  the  rules  of  equity  pleading,  but  whether  it  is  supple- 
mental and  ancillary,  or  is  to  be  considered  entirely  new  and 
original,  in  the  sense  which  this  court  has  sanctioned  with 
reference  to  the  line  which  divides  the  jurisdiction  of  the  fed- 
eral courts  from  that  of  the  state  courts.  No  one,  for  in- 
stance, would  hesitate  to  say  that,  according  to  the  English 
chancery  practice,  a  bill  to  enjoin  a  judgment  at  law  is  an 
original  bill,  in  the  chancery  sense  of  the  word.  Yet  this 
court  has  decided  many  times  that,  when  a  bill  is  filed  in  the 
circuit  court  to  enjoin  a  judgment  of  that  court,  it  is  not  to 
be  considered  as  an  original  bill,  but  as  a  continuation  of  the 
proceeding  at  law — so  much  so  that  the  court  will  proceed 
in  the  injunction  suit  without  actual  service  of  subpoena  on 
the  defendant,  and  though  he  be  a  citizen  of  another  state, 
if  he  were  a  party  to  the  judgment  at  law.  The  case  before 
us  is  analogous.  An  unjust  advantage  has  been  obtained  by 
one  party  over  another  by  a  perversion  and  abuse  of  the  or- 
ders of  the  court,  and  the  party  injured  comes  now  to  the 
same  court  to  have  this  abuse  corrected,  and  to  carry  into 

»3  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall.  609,  17  L.  Ed.  886;  Pa- 
cific R.  Co.  v.  Railroad  Co.,  Ill  U.  S.  505,  4  Sup.  Ct.  583,  28  L.  Ed. 
498. 

»4  2  Wall.  609,  17  L.  Ed.  886. 

Hughes  Ped.Juk. — 18 


274  CIRCUIT    COURT ORIGINAL   JURISDICTION.  (Cll.  12 

effect  the  real  intention  and  decree  of  the  court,  and  that 
while  the  property  which  is  the  subject  of  contest  is  still  within 
the  control  of  the  court,  and  subject  to  its  order." 

Cross-Bills. 

Another  common  procedure  sustainable  under  this  principle 
of  ancillary  jurisdiction  is  the  case  of  cross-bills,  which  are 
treated  as  ancillary,  and  therefore  within  the  jurisdiction  of 
the  court,  when  they  relate  to  the  same  subject-matter  as 
the  original  or  main  litigation.05 

Under  the  inherent  power  of  the  court  to  prevent  its  pro- 
cess from  being  used,  either  fraudulently  or  otherwise,  in  such 
manner  as  to  cause  oppression,  or  to  deprive  any  one  of  his 
rights,  proceedings  to  settle  adverse  claims  to  property,  either 
by  asserting  title  or  by  questioning  the  proceedings  in  the 
main  case,  are  sustainable  as  ancillary  and  dependent. 

In  Krippendorf  v.  Hyde 96  the  marshal  had  attached  the 
property  of  a  third  party  as  belonging  to  the  defendant.  This 
third  party  was  allowed  to  intervene  for  the  purpose  of  se- 
curing relief,  and  this  proceeding  was  treated  as  ancillary,  and 
justified  by  the  inherent  power  of  the  court  to  prevent  its 
process  from  being  oppressively  used. 

9  5  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  v.  Railroad  Co.,  137  U.  S.  171, 
11  Sup.  Ct.  61,  34  L.  Ed.  625;  Everett  v.  School  Dist.  (C.  C.)  102  Fed. 
529;  Brooks  v.  Laurent,  98  Fed.  647,  39  O.  C.  A.  201. 

»8  110  U.  S.  276,  4  Sup.  Ct.  27,  28  L.  Ed.  145;  Broadis  v.  Broadia 
(C.  O.)  86  Fed.  951. 


§  110)        CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.  275 


CHAPTER  XTTI. 

THE  CIRCUIT  COURT  (Continued)— JURISDICTION  BY 
REMOVAL. 

110.  Removals  from  the  United  States  District  Courts. 

111.  Removals  from  State  Courts — Purpose  of  Such  Jurisdiction. 

112.  Nature  of  the  Right — How  Far  Waivable. 

113.  Scope  of  the  Jurisdiction. 

114.  Federal  Questions. 

115.  Suits  by  the  United  States. 

The  class  of  jurisdiction  of  the  circuit  courts  by  removal 
from  other  courts  is  practically  as  extensive  as  its  jurisdiction 
over  cases  originally  instituted  there.  It  acquires  jurisdiction 
in  this  way  by  transfer  or  removal,  first,  from  the  district 
courts ;  and,  second,  from  the  state  courts. 

REMOVALS  FROM  THE  UNITED  STATES  DISTRICT 
COURTS. 

110.  The  circuit  court  has  jurisdiction  by  removal  from  the 
United  States  district  court  in  certain  instances 
where,  for  various  prescribed  reasons,  it  is  impossible 
or  improper  for  the  district  judge  to  try  the  case. 

Section  637  of  the  Revised  Statutes  x  provides :  "When 
any  cause,  civil  or  criminal,  of  whatever  nature,  is  removed 
into  a  circuit  court,  as  provided  by  law,  from  a  district  court 
wherein  the  same  is  cognizable,  on  account  of  the  disability 
of  the  judge  of  such  district  court,  or  by  reason  of  his  being 
concerned  in  interest  therein,  or  having  been  of  counsel  for 
either  party,  or  being  so  related  to  or  connected  with  either 
party  to  such  cause  as  to  render  it  improper,  in  his  opinion, 
for  him  to  sit  on  the  trial  thereof,  such  circuit  court  shall 
have  the  same  cognizance  of  such  cause,  and  in  like  manner, 

i  U.  S.  Comp.  St.  1901,  p.  519. 


27G  CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.      (Cll.  13 

as  the  said  district  court  might  have,  or  as  said  circuit  court 
might  have  if  the  same  had  been  originally  and  lawfully  com- 
menced therein ;  and  shall  proceed  to  hear  and  determine  the 
same  accordingly." 

It  has  been  seen  in  previous  connections  that,  under  sec- 
tion 587  of  the  Revised  Statutes,2  certain  cases  can  be  trans- 
ferred from  the  district  courts  to  the  circuit  courts  where  the 
district  judge,  for  various  reasons  therein  specified,  cannot  try 
the  case.  This  section  gives  the  circuit  courts  power  under 
such  circumstances  to  take  jurisdiction  and  dispose  of  it. 

REMOVALS    FROM    STATE    COURTS— PURPOSE    OF    SUCH 
JURISDICTION. 

111.  The  purpose  of  the  federal  jurisdiction  hy  removal  from 
state  courts  in  certain  cases,  principally  of  diverse 
citizenship  and  federal  questions,  is  that  in  the  former 
local  influence  and  prejudice  may  he  avoided,  and  in 
the  latter  the  right  to  have  the  federal  courts  pass 
upon  such  questions  is  essential  to  the  proper  adminis- 
tration of  federal  laws.* 

In  discussing  the  original  jurisdiction,  it  has  been  seen  that 
these  cases  may  originally  be  brought  in  the  federal  court. 
Where  the  parties  asserting  a  federal  right  or  residing  outside 
of  a  state  are  plaintiffs,  this  provision  is  sufficient  for  their 
protection;  but  it  was  necessary  to  provide,  also,  for  those 
cases  where  the  nonresident  was  a  defendant,  or  where  the 
federal  question  asserted  in  a  state  court  could  be  removed  by 
the  party  against  whom  it  was  asserted.  Hence  the  provision 
allowing  the  removal  of  cases  from  state  courts  into  the  fed- 
eral courts.  The  constitutional  right  of  Congress  to  provide 
not  only  for  giving  the  federal  courts  original  cognizance  of 
such  cases,  but  also  for  giving  the  right  of  removal,  is  well  set- 
tled.* 

2  U.  S.  Comp.  St.  1901,  p.  479.  *  Federalist,  No.  80. 

*  Gaines  v.  Fuentes,  92  U.  S.  10,  23  L.  Ed.  524;  Tennessee  v.  Da- 
vis, 100  TJ.  S.  257,  25  L.  Ed.  648. 


§  112)  NATURE    OF   THE    RIGHT.  277 

The  provisions  for  removal  of  cases,  however,  elaborate  as 
they  are,  fall  far  short  of  the  constitutional  grant  to  Con- 
gress of  legislation  on  this  subject.  There  are  many  cases  in- 
volving federal  questions,  or  involving  controversies  between 
citizens  of  different  states,  which  cannot  be  removed  into  the 
federal  courts.  It  is  true,  as  will  be  seen  hereafter,  that  in 
some  of  these  cases  an  appeal  can  be  taken  from  the  state 
court  of  last  resort  to  the  Supreme  Court  of  the  United  States, 
where  a  federal  question  is  involved,  but  even  this  does  not  by 
any  means  exhaust  the  possibilities  of  such  cases.  Where  a 
right  arising  under  the  Constitution  and  laws  of  the  United 
States  is  asserted  in  a  state  court,  and  decided  in  favor  of  the 
right  in  the  state  court,  such  appeals  do  not  lie,  and  there  are 
many  questions  where  the  construction  of  the  Constitution  or 
an  act  of  Congress  may  be  involved  in  a  state  court  over 
which  no  federal  court  has  any  supervision.  The  legislation 
of  Congress  on  this  point  therefore  has  been  conservative  and 
temperate. 


NATURE  OF  THE  RIGHT— HOW  FAR  WAIVABLE. 

11&.  Thi'  right  to  remove  cases  is  purely  statutory,  and,  as 
ii-  similar  cases  of  original  suits,  cannot  be  conferred 
by  consent,  but  the  parties  must  make  a  clear  show- 
ing of  compliance  with  the  statute  and  of  the  jurisdic- 
tional facts.5 
But  while  consent  cannot  give  this  right,  consent  can  waive 
it  in  special  cases,  and  not  only  consent,  but  such  acts 
equivalent  to  consent  as  may  be  considered  a  waiver, 
and  as  would  equitably  estop  a  party  from  attempting 
to  remove  his  case.6 


•  Kingsbury  v.  Kingsbury,  Fed.  Cas.  No.  7,817;  First  Nat.  Bank 
v.  Prager,  91  Fed.  6S9,  34  C.  C.  A.  51;  Byers  v.  McAuley,  149  U.  S. 
608,  13  Sup.  Ct.  906,  37  L.  Ed.  867. 

«  Hanover  Nat.  Bank  v.  Smitb,  Fed.  Cas.  No.  6,035 ;  Case  v.  Olney 
(C.  C.)  106  Fed.  433.  Compare  Atlanta,  K.  &  N.  Ry.  Co.  v.  Railway 
Co.  (C.  C.  A.)  131  Fed.  657. 


278  CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.      (Ch.  13 

In  West  Virginia  v.  King  7  a  defendant  applied  to  a  state 
court  for  removal  of  a  case,  and  the  court  refused  his  petition. 
He  thereafter  asked  for  an  amendment  of  his  pleadings,  which 
was  allowed  by  the  court,  and  applied  to  the  state  court  of 
appeals  for  a  writ  of  prohibition  designed  to  give  the  case  in 
the  state  court  a  certain  shape  to  his  advantage.  It  was  held 
that  this  action  of  his  was  a  waiver  of  his  right  to  remove. 

It  is  difficult  to  understand,  however,  how,  after  a  petition 
has  been  filed  and  refused,  and  proper  exceptions  taken,  any 
steps  in  the  state  court  looking  to  setting  up  the  best  de- 
fense thereto  can  be  considered  a  waiver.  The  Supreme  Court 
has  frequently  decided  that,  after  a  petition  to  remove  has 
been  refused,  the  party  may  go  on  and  resist  the  case  in  the 
state  court,  or  prosecute  it  in  the  federal  court  and  disregard 
the  state  court,  or  do  both.8 

But  it  is  not  a  waiver  of  the  right  to  remove,  where  a  non- 
resident defendant  enters  a  special  appearance  in  a  state  court, 
and  asks  to  set  aside  a  judgment  against  him  for  want  of 
service,  and  takes  a  bill  of  exceptions  to  the  refusal  of  the 
court  to  do  so.9 

Nor  is  it  a  waiver  of  the  right  to  remove  to  give  an  attach- 
ment bond  in  the  state  court  in  order  to  release  property  from 
attachment.10 

Although  a  defendant  in  a  particular  case  can  waive  his 
right  to  remove,  either  by  express  consent  or  by  acts  equiva- 
lent thereto,  he  cannot  agree  generally  not  to  remove  cases 
to  the  federal  courts,  nor  can  a  state  statute  require  such  an 
agreement,  as  it  would  be  in  fraud  of  the  jurisdiction  of 
the  courts.  This  question  has  come  up  frequently  in  cases 
where  state  legislatures  attempt  to  impose  on  foreign  cor- 
porations, as  a  condition  of  allowing  them  to  do  business  in 

t  (C.  C.)  112  Fed.  369. 

6  CHESAPEAKE  &  O.  RY.  CO.  v.  WHITE,  111  U.  S.  134,  4  Sup. 
Ct.  353,  28  L.  Ed.  378. 

9  Baumgardner  v.  Fertilizer  Co.  (C.  C.)  58  Fed.  1. 

io  Purdy  v.  Wallace,  Muller  &  Co.  (C.  C.)  81  Fed.  513. 


§  112)  NATURE  OF  THE  RIGHT.  279 

the  state,  an  agreement  that  they  would  not  remove  their 
cases  to  the  federal  courts. 

In  Doyle  v.  Continental  Ins.  Co.11  there  are  expressions  in 
the  opinion  which  would  seem  to  imply  that  a  state  legisla- 
ture could  direct  its  officers  to  revoke  a  license  granted  to  a 
foreign  corporation  if  a  foreign  corporation  removed  a  case, 
on  the  ground  that  the  state,  having  the  right  to  refuse  the 
privilege  of  doing  business  entirely  to  a  corporation,  could  not 
have  its  action  or  instructions  to  its  own  officers  inquired  into. 

But  in  the  later  case  of  Barron  v.  Burnside  12  the  Supreme 
Court  explained  that  the  only  question  decided  in  the  above 
case  was  that  an  injunction  would  not  lie  against  a  state  officer 
to  prevent  him  from  revoking  such  a  license,  and  that  such 
a  condition  in  a  state  statute  was  absolutely  void;  and  this 
case  has  been  followed  since  in  many  cases.13 

The  principle  on  which  these  cases  turn  is  that  the  right 
to  remove  is  a  constitutional  right,  of  which  a  party  cannot 
be  deprived  by  state  legislation. 

On  the  same  principle,  a  state  cannot  limit  to  its  own  courts 
the  enforcement  of  a  controversy  of  which  Congress  has  given 
the  federal  courts  jurisdiction  under  the  provisions  of  the  fed- 
eral Constitution.  If  the  controversy  is  such  as  can  be  con- 
stitutionally conferred  on  the  federal  courts  by  Congress,  and 
if  it  has  been  so  conferred,  then  the  act  of  the  state  in  giv- 
ing its  own  courts  jurisdiction  of  itself  gives  the  federal 
courts  jurisdiction  over  it.  For  instance,  in  Lincoln  Co.  v. 
Luning  14  a  state  statute  gave  the  right  to  sue  a  county  simply 
in  the  state  courts.  It  was  held  that  a  nonresident  could  bring 
a  suit  against  the  county  in  the  federal  courts. 

11  94  U.  S.  535,  24  L.  Ed.  14S. 

12  121  U.  S.  186,  7  Sup.  Ct.  931,  30  L.  Ed.  915. 

is  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct.  44,  36 
L.  Ed.  942;  SOUTHERN  RY.  CO.  v.  ALLISON,  190  U.  S.  326,  23 
Sup.  Ct.  713,  47  L.  Ed.  1078. 

"  133  U.  S.  529,  10  Sup.  Ct  363,  33  L.  Ed.  766. 


280  CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.      (Ch.  13 

In  Smith  Middlings  Purifier  Co.  v.  McGroarty  15  the  state 
statute  limited  the  procedure  to  its  probate  courts.  But  the 
Supreme  Court,  considering  that  the  question  involved  was 
not  a  mere  probate  proceeding,  but  a  controversy  between 
citizens  of  different  states,  held  that  it  could  be  originally 
brought  in  the  federal  courts. 

The  above  cases  were  both  cases  of  original  suits  in  the 
federal  courts.  Clark  v.  Bever  16  was  a  case  where  a  dece- 
dent's estate  was  being  settled  in  a  probate  proceeding,  but 
there  was  a  controversy  between  citizens  of  different  states 
as  to  their  rights  in  these  probate  proceedings.  The  court 
held  that  such  a  controversy  could  be  removed  into  the  fed- 
eral court. 

In  Kirby  v.  Chicago  &  N.  W.  Ry.  Co.17  a  condemnation 
proceeding  in  a  court  was  held  to  be  removable  into  the  federal 
courts. 

SCOPE  OF  THE  JURISDICTION. 

113.   The  jurisdiction  of  the   circuit  courts  by  removal  from 
the  state  courts  applies  in.  the  following  cases: 

(a)  Federal  questions. 

(b)  Other    cases    falling   under   the   original   jurisdiction   of 

the  federal  court  as  follows: 

(1)  Suits  by  the  United  States; 

(2)  Suits  between  citizens  of  different  states} 

(3)  Suits  arising  from  conflicting  land  grants  of  differ- 

ent states; 

(4)  Suits  between  citizens  and  aliens. 

(c)  Suits    containing    separable    controversies    between    citi- 

zens of  different  states. 

(d)  Suits  between  citizens  of  different  states  on  ground  of 

local  prejudice  or  influence. 

(e)  Denial  of  equal  civil  rights. 

(f)  Cases  against  revenue  officers,  etc. 

ib  136  U.  S.  237,  10  Sup.  Ct.  1017,  34  L.  Ed.  346. 
i«  139  U.  S.  96,  11  Sup.  Ct.  468,  35  L.  Ed.  88. 
"  (C.  C.)  106  Fed.  551. 


§113)  SCOPE    OF   THE    JURISDICTION.  281 

The  Statutes  Authorizing  Removal,  and  the  Cases  Authorised 
by  Them. 

The  statutes  regulating  removal  of  cases  to  the  federal 
courts  have  existed  in  some  form  from  the  original  judiciary 
act  of  1789.  They  have  been  frequently  changed  and  amended, 
sometimes  by  extensions  and  sometimes  by  restrictions,  ac- 
cording to  the  views  of  public  policy  which  prevailed  at  differ- 
ent periods  in  our  federal  history.  The  act  which  extended 
the  right  of  removal  farthest  was  the  act  of  March  3,  1875,  but 
this  was  very  much  narrowed  by  the  act  of  March  3,  1887, 
which  amended  its  principal  section  in  such  a  way  as  greatly 
to  restrict  the  cases  removable,  and  the  time  within  which 
they  should  be  removed.  This  act,  in  its  original  form,  was 
most  inaccurate,  and  consequently  the  act  of  August  13,  1888, 
was  passed  to  correct  the  mistakes  of  grammar  and  rhetoric 
which  had  been  made  in  the  first  act.  For  convenience  here- 
after this  last  act  will  be  treated  as  the  act  in  force,  though  it 
practically  made  no  change  in  the  policy  of  the  act  of  March 
3,  188V. 

In  connection  with  the  original  jurisdiction  of  the  federal 
courts,  the  first  section  of  this  act  has  already  been  quoted  in 
full.18  '  The  second  and  third  sections  of  the  act  provide 
for  removal  from  the  state  courts  in  the  vast  majority  of  in- 
stances where  that  removal  can  now  be  had.  Its  first  sen- 
tence provides  for  removal,  under  certain  circumstances,  of 
cases  arising  under  the  Constitution  and  laws  of  the  United 
States,  or  federal  questions,  as  they  are  commonly  termed. 
This  provision  is  independent  of  citizenship. 

The  second  sentence  of  this  section  provides  for  the  re- 
moval of  cases  dependent  on  diverse  citizenship  which  could 
be  originally  instituted  in  the  federal  courts  under  the  provi- 
sions of  section  1,  and  which,  as  already  seen,  cover  not  only 
controversies  between  citizens  of  different  states,  but  con- 
troversies between  citizens  of  a  state  and  foreign  states,  and 
controversies  between  citizens  of  the  same  state  claiming  un- 

i  •  Ante,  p.  190. 


282  CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.      (Ch.  13 

der  land  grants  of  different  states.    This  first  sentence,  howev- 
er, provides  only  for  removing  the  entire  case. 

The  third  sentence  of  this  second  section  provides  for  re- 
moving a  controversy  in  the  main  case  which  is  between  citi- 
zens of  different  states,  and  which  can  be  fully  determined  as 
to  them,  or  controversies  commonly  termed  separable.  This 
provides  only  for  controversies  between  citizens  of  different 
states,  not  for  controversies  between  citizens  and  aliens. 

The  fourth  sentence  of  the  second  section  provides  for  the 
removal  of  controversies  where  prejudice  or  local  influence  can 
be  made  to  appear.  This  covers  only  cases  between  citizens 
of  different  states. 

The  last  half  of  the  third  section  of  this  act  provides  for 
controversies  between  citizens  of  the  same  state  claiming  un- 
der land  grants  of  different  states.  It  enlarges  and  practical- 
ly supersedes  section  647  of  the  Revised  Statutes.  Independ- 
ent of  these  provisions  in  section  3,  such  a  case  would  have 
been  covered  by  the  provision  of  section  2,  which  provides  for 
the  removal  of  any  suit  which  could  have  been  originally 
brought  under  the  provisions  of  section  1  of  the  act,  for  that 
section  names  among  such  cases  controversies  between  citi- 
zens of  the  same  state  claiming  lands  under  grants  of  different 
states,  as  has  been  previously  shown.10 

The  next  class  of  cases  for  which  a  removal  is  provided  is 
cases  against  persons  denied  any  civil  right,  and  is  covered  by 
section  641  of  the  Revised  Statutes.20  This  statute  is  still  in 
force,  and  under  this  provision  both  civil  and  criminal  cases 
can  be  removed. 

The  next  provision  as  to  removal  is  the  case  of  suits  and 
prosecutions  against  revenue  officers,  and  is  covered  by  sec- 
tion 643,  which  is  still  in  force.21 

The  next  provision  is  for  the  removal  of  suits  by  aliens 
against  nonresident   citizens  of  a  state  who  are  acting  as 

«  Ante,  p.  225.  20  u.  S.  Comp.  St.  1901,  p.  520. 

«  U.  S.  Comp.  St.  1901,  p.  521. 


§  114)  FEDERAL   QUESTIONS.  283 

civil  officers  of  the  United  States,  and  is  covered  by  section 
641  of  the  Revised  Statutes.22 

This  section  is  not  expressly  repealed  or  preserved  by  the 
act  of  August  13,  1888.  In  cases  involving  more  than  $2,000, 
it  is  practically  covered  by  that  act,  but  it  would  seem  to  be 
still  in  force  as  to  all  cases  not  covered  by  that  act 


FEDERAL  QUESTIONS. 

114.  In  suits  of  a  civil  nature  at  law  or  in  equity,  the  defend- 
ant or  defendants  are  given  a  right  of  removal  from 
the  state  to  the  federal  court  in  cases  arising  under 
the  Constitution  or  laws  of  the  United  States,  or  trea- 
ties made  under  their  authority.  In  order  for  a  case 
to  be  removable  under  this  principle,  the  existence  of 
the  federal  question  must  be  apparent  on  the  face  of 
the  plaintiff's  pleadings,  and  it  must  be  such  a  case  as 
would  be  cognizable  by  the  court  if  the  same  were 
originally  brought  therein. 

Cases  Arising  under  the  Constitution  and  Laws  of  the  United 
States,  Commonly  Called  Federal  Questions. 

This  is  the  first  class  named  in  the  second  section  of  the  act 
of  August  13,  1888,  which,  as  stated  above,  covers  the  great 
mass  of  removable  cases,  and  hence  it  is  best  to  quote  the 
section  in  full  in  this  connection.     It  is  as  follows : 

"Sec.  2.  That  any  suit  of  a  civil  nature,  at  law  or  in  equity, 
arising  under  the  Constitution  or  laws  of  the  United  States, 
or  treaties  made,  or  which  shall  be  made,  under  their  author- 
ity, of  which  the  circuit  courts  of  the  United  States  are  given 
original  jurisdiction  by  the  preceding  section,  which  may 
now  be  pending,  or  which  may  hereafter  be  brought,  in  any 
state  court,  may  be  removed  by  the  defendant  or  defendants 
therein  to  the  circuit  court  of  the  United  States  for  the  prop- 
er district.  Any  other  suit  of  a  civil  nature,  at  law  or  in 
equity,  of  which  the  circuit  courts  of  the  United  States  are 

22  U.  S.  Comp.  St.  1901,  p.  523. 


284  CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.      (Ch.  13 

given  jurisdiction  by  the  preceding  section,  and  which  are  now 
pending,  or  which  may  hereafter  be  brought,  in  any  state 
court,  may  be  removed  into  the  circuit  court  of  the  United 
States  for  the  proper  district  by  the  defendant  or  defendants 
therein,  being  nonresidents  of  that  state.  And  when  in  any 
suit  mentioned  in  this  section  there  shall  be  a  controversy 
which  is  wholly  between  citizens  of  different  states,  and  which 
can  be  fully  determined  as  between  them,  then  either  one  or 
more  of  the  defendants  actually  interested  in  such  contro- 
versy may  remove  said  suit  into  the  circuit  court  of  the 
United  States  for  the  proper  district.  And  where  a  suit  is  now 
pending,  or  may  be  hereafter  brought,  in  any  state  court,  in 
which  there  is  a  controversy  between  a  citizen  of  the  state 
in  which  the  suit  is  brought  and  a  citizen  of  another  state,  any 
defendant,  being  such  citizen  of  another  state,  may  remove 
such  suit  into  the  circuit  court  of  the  United  States  for  the 
proper  district,  at  any  time  before  the  trial  thereof,  when  it 
shall  be  made  to  appear  to  said  circuit  court  that  from  preju- 
dice or  local  influence  he  will  not  be  able  to  obtain  justice  in 
such  state  court,  or  in  any  other  state  court  to  which  the  said 
defendant  may,  under  the  laws  of  the  state,  have  the  right, 
on  account  of  such  prejudice  or  local  influence,  to  remove  said 
cause :  provided,  that  if  it  further  appear  that  said  suit  can  be 
fully  and  justly  determined  as  to  the  other  defendants  in  the 
state  court,  without  being  affected  by  such  prejudice  or  local 
influence,  and  that  no  party  to  the  suit  will  be  prejudiced  by 
a  separation  of  the  parties,  said  circuit  court  may  direct  the 
suit  to  be  remanded,  so  far  as  relates  to  such  other  defendants, 
to  the  state  court,  to  be  proceeded  with  therein. 

"At  any  time  before  the  trial  of  any  suit  which  is  now  pend- 
ing in  any  circuit  court  or  may  hereafter  be  entered  therein, 
and  which  has  been  removed  to  said  court  from  a  state  court 
on  the  affidavit  of  any  party  plaintiff  that  he  had  reason  to 
believe  and  did  believe  that,  from  prejudice  or  local  influ- 
ence, he  was  unable  to  obtain  justice  in  said  state  court,  the 
circuit  court  shall,  on  application  of  the  other  party,  examine 


§  114)  FEDERAL   QUESTIONS.  285 

into  the  truth  of  said  affidavit  and  the  grounds  thereof,  and, 
unless  it  shall  appear  to  the  satisfaction  of  said  court  that  said 
party  will  not  be  able  to  obtain  justice  in  such  state  court, 
it  shall  cause  the  same  to  be  remanded  thereto. 

"Whenever  any  cause  shall  be  removed  from  any  state  court 
into  any  circuit  court  of  the  United  States,  and  the  circuit 
court  shall  decide  that  the  cause  was  improperly  removed,  and 
order  the  same  to  be  remanded  to  the  state  court  from  whence 
it  came,  such  remand  shall  be  immediately  carried  into  exe- 
cution, and  no  appeal  or  writ  of  error  from  the  decision  of 
the  circuit  court  so  remanding  such  cause  shall  be  allowed."  : 

Analyzing  the  first  sentence  of  this  section,  it  will  be  seen 
that,  in  order  to  remove  a  case  under  its  provisions,  it  must 
be,  first,  a  suit  of  a  civil  nature,  at  law  or  in  equity ;  second,  it 
must  arise  under  the  Constitution  or  laws  of  the  United  States, 
or  treaties  made  or  which  shall  be  made  under  their  authority, 
of  which  the  circuit  courts  are  given  original  jurisdiction  by 
the  preceding  section ;  third,  it  is  removable  only  by  the  de- 
fendant 

The  question  what  constitutes  a  suit  of  a  civil  nature  at  law 
or  in  equity  has  been  discussed  in  connection  with  the  orig- 
inal jurisdiction  of  the  circuit  court24  to  which  reference  is 
now  made. 

The  same  general  principles  apply  in  connection  with  the 
removal  of  cases.  As  has  been  seen  in  that  connection,  con- 
demnation proceedings,  if  in  a  court,  and  involving  on  their 
face  a  right  arising  under  the  laws  of  the  United  States,  are 
cognizable  in  the  federal  courts,  and  hence  may  be  removed.25 

As  shown,  also,  in  that  same  connection,  a  mandamus  pro- 
ceeding is  not  such  -a  suit  as  can  be  originally  brought,  and 
hence  not  such  a  suit  as  can  be  removed." 


23  U.  S.  Comp.  St.  1901,  p.  509.  24  Ante,  p.  192. 

25  Searl  v.  School  Dist,  124  U.  S.  197,  8  Sup.  Ct.  460,  31  L.  Ed.  415; 
City  of  Terre  Haute  v.  Railroad  Co.  (C.  C.)  106  Fed.  545;  Kirby  v. 
Railroad  Co.  (C.  C.)  106  Fed.  551. 

26  Indiana  v.  Railway  Co.  (C.  C.)  So  Fed.  1. 


2S6  CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.      (Cll.  13 

In  order  to  permit  the  removal  of  a  case  as  arising  under  the 
Constitution  and  laws  of  the  United  States,  it  is  well  set- 
tled that  this  must  appear  on  the  face  of  the  plaintiff's  plead- 
ings, and  cannot  be  made  to  appear  by  the  averments  of  the 
petition  to  remove.  The  construction  of  the  act  of  August 
13,  1888,  in  this  respect  makes  a  radical  difference  between  it 
and  the  act  of  March  3,  1875,  which  it  amended.  Under  that 
act,  if  it  appeared  either  by  the  plaintiff's  pleadings,  or  the 
defense  thereto,  or  in  any  way,  at  the  time  of  filing  the  peti- 
tion of  removal,  that  the  case  turned  on  a  federal  question, 
it  was  removable.  The  reason  of  the  difference  in  construc- 
tion is  that  the  later  act  expressly  provides  that  only  those 
cases  can  be  removed  which  could  have  been  brought  orid- 
nally  in  the  circuit  court.  It  has  been  seen  in  discussing  the 
original  jurisdiction  that  the  circuit  court  has  no  jurisdiction 
on  the  ground  of  a  federal  question  being  involved  unless 
that  appears  from  the  plaintiff's  own  statement  of  his  own 
case,  and  that  even  a  statement  in  the  plaintiff's  case,  by  way 
of  anticipation,  that  the  defendants  will  set  up  a  federal  ques- 
tion, will  not  give  the  court  jurisdiction.  Hence,  as  the  courts 
would  not  have  had  jurisdiction  unless  this  appeared  from 
the  plaintiff's  own  case,  it  follows  that  they  cannot  have  ju- 
risdiction of  a  case  removed  from  a  state  court  as  involving  a 
federal  question  unless  the  plaintiff's  own  statement  of  his 
case  in  the  state  court  necessarily  shows  that  a  federal  ques- 
tion was  involved. 

The  leading  case  on  this  subject  is  Tennessee  v.  Union  & 
Planters'  Bank.27  Under  this  principle  there  are  many  cases 
which  naturally  involve  a  federal  question  on  the  trial,  and 
which  cannot  be  removed  because  there  is  nothing  on  the  face 
of  the  plaintiff's  pleadings  to  show  that  a  federal  question 
was  involved.  For  instance,  it  has  been  seen  that  a  suit 
against  a  United  States  marshal  for  an  illegal  levy  involves  a 

27  TENNESSEE  v.  BANK,  152  U.  S.  454,  14  Sup.  Ct.  654,  38  L.  Ed. 
511.  See,  also,  Minnesota  v.  Securities  Co.,  194  U.  S.  48,  24  Sup.  Ct 
598,  48  L.  Ed.  870. 


§  114^  FEDERAL   QUESTIONS.  287 

federal  question.  Yet  if  the  plaintiff  so  words  his  declaration 
that  nothing  appears  on  the  face  of  it  to  show  that  the  de- 
fendant is  a  United  States  marshal,  or  that  he  is  acting  in  any 
federal  capacity,  but  shows  merely  an  ordinary  action  of  tro- 
ver, the  case  could  not  be  removed;  for  the  federal  question 
would  only  come  out  in  defense  in  such  case,  and  hence  would 
not  appear  in  the  plaintiff's  petition.  This  important  distinction 
must  be  borne  closely  in  mind.28 

Suits  against  Corporations  Organised  under  Federal  Law. 

This  principle  works  out  interestingly  in  suits  against  cor- 
porations owing  their  existence  to  federal  legislation. 

It  has  long  been  settled  that  a  federal  question  is  involved 
if  a  suit  is  brought  against  a  corporation  organized  by  virtue 
of  federal  law.  In  Oregon  Short  Line  &  U.  N.  R.  Co.  v. 
Skottowe,29  the  plaintiff's  declaration  alleged  that  the  defend- 
ant corporation  was  organized  under  state  statutes,  and 
merely  held  certain  additional  powers  under  an  act  of  Con- 
gress. The  court  held  that  here,  too,  in  order  to  remove  on 
the  ground  of  being  a  federal  corporation,  it  must  appear  on 
the  face  of  the  plaintiff's  pleadings  to  have  been  such,  and 
that  it  did  not  become  such  merely  because  an  act  of  Congress 
gave  it  some  additional  powers. 

But  in  the  later  case  of  Texas  &  P.  R.  Co.  v.  Cody,30  which 
was  a  suit  by  a  resident  of  the  district  where  the  suit  was 
brought  against  a  nonresident  corporation  organized  under 
federal  law,  the  court  held  that  the  case  could  be  removed 
by  the  defendant  as  a  nonresident  defendant,  independent  of 
the  question  of  its  paternity.  It  went  on  to  say,  however, 
that,  while  the  general  principle  announced  in  the  Oregon 
Short  Line  Case  was  correct,  the  case  could  be  removed  on 
the  ground  of  the  defendant  being  a  federal  corporation  if  it 
became  such  by  virtue  of  an  act  of  Congress  which  they  were 

««  WALKER  v.  COLLINS,  167  U.  S.  57,  17  Sup.  Ct.  738,  42  L.  Ed. 
76;  Mayo  v.  Dockery  (C.  C.)  108  Fed.  897. 

2  9  162  U.  S.  490,  16  Sup.  Ct.  869,  40  L.  Ed.  1048. 
so  166  U.  S.  606,  17  Sup.  Ct.  703,  41  L.  Ed.  1132. 


2S8  CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.      (Cll.  13 

required  to  notice  judicially,  even  though  there  was  nothing  on 
the  face  of  the  plaintiff's  declaration  to  show  it ;  thus  restrict- 
ing to  some  extent  the  principle  laid  down  in  the  Oregon 
Short  Line  Case. 

Independent,  however,  of  this  question  of  pleading,  it  is  well 
settled  that  the  mere  fact  that  a  corporation  is  a  federal  cor- 
poration injects  a  federal  question  into  the  case.  If  it  cannot 
be  removed  on  the  ground  that  such  federal  question  is  in- 
volved, for  the  reason  that  it  does  not  so  appear  on  the 
pleadings,  there  are  many  cases  where  this  fact  would  give  at 
least  a  right  of  appeal  from  the  state  court  to  the  Supreme 
Court  if  the  action  of  the  state  court  deprived  the  company  of 
any  right  claimed  under  the  federal  acts. 

However,  the  mere  fact  that  the  suit  in  a  state  court  is 
against  a  receiver  appointed  by  a  federal  court  does  not  in- 
volve a  federal  question.  In  such  case  the  statute  permits 
suits  against  the  receiver,  who  is  appointed  under  the  general 
chancery  powers  of  the  court,  and  the  mere  fact  that  he  is 
appointed  by  a  federal  court  does  not  make  it  a  federal  ques- 
tion.81 

A  federal  question  is  not  involved  when  a  suit  is  brought 
in  a  state  court  to  enjoin  the  importation  of  armed  men  into 
the  state,  for  the  purpose  of  controlling  a  strike,  by  a  cor- 
poration organized  outside  of  the  state ;  the  ground  of  the 
suit  being  that  their  importation  would  be  dangerous  to  the 
peace  and  good  order  of  the  state.32 

A  Suit  is  not  Removable  on  the  Ground  that  a  Federal  Ques- 
tion is  Involved  unless  It  is  a  Case  of  Which  the  Circuit 
Court  is  Given  Original  Jurisdiction  by  the  First  Section 
of  the  Act. 
A  reference  to  this  section  shows  that,  in  order  for  the  fed- 
eral court  to  have  original  jurisdiction  if  the  suit  were  brought 

si  Gableman  v.  Railway  Co.,  179  U.  S.  335,  21  Sup.  Ct.  171,  45  L. 
Ed.  220,  limiting  Texas  &  P.  Ry.  Co.  v.  Cox,  145  U.  S.  593,  12  Sup. 
Ct.  905,  36  L.  Ed.  829. 

32  Arkansas  v.  Railroad  Co.,  183  U.  S.  185,  22  Sup.  Ct.  47,  46  L. 
Ed.  144. 


§  114)  FEDERAL   QUESTIONS.  289 

there  on  the  ground  that  a  federal  question  was  involved,  it 
must  not  only  be  a  suit  of  a  civil  nature  at  common  law  or  in 
equity,  but  it  must  involve,  exclusive  of  interest  and  costs,  the 
sum  or  value  of  two  thousand  dollars.  This  monetary  limit 
has  been  discussed  in  connection  with  the  original  jurisdic- 
tion.33 

This  restriction,  however,  limiting  the  right  of  removal  to 
suits  which  could  be  originally  brought  in  a  federal  court,  re- 
fers simply  to  the  question  of  jurisdiction  over  the  subject- 
matter,  not  to  the  latter  part  of  the  section  prescribing  the 
district  of  suit.  The  latter  requirement  is  a  mere  question  of 
jurisdiction  over  the  person,  and  is  waivable,  whereas  the 
former  is  a  question  of  jurisdiction,  vital  to  maintaining  any 
suit  at  all,  and  cannot  be  waived.  It  is  settled  that  it  was 
the  intention  of  Congress  by  this  restriction  on  removal  of 
cases  to  limit  them  simply  in  reference  to  jurisdiction  over 
the  subject-matter,  not  in  reference  to  jurisdiction  over  the  per- 
son.34 

This  limitation  as  to  original  jurisdiction  would  shut  out 
cases  over  which  federal  courts,  as  courts  of  equity,  have  no 
jurisdiction,  even  though  the  state  court  would  have  by  rea- 
son of  a  special  state  statute.  As  an  illustration,  many  states 
have  statutes  permitting  attacks  on  deeds  alleged  to  be  fraud- 
ulent, without  obtaining  a  previous  judgment.  Hence  a  suit 
brought  originally  in  a  state  court  would  be  within  the  juris- 
diction of  that  court.  The  federal  courts  have  held,  however, 
that  these  statutes  cannot  confer  equity  jurisdiction  on  the  fed- 
eral courts.  Hence  a  case  of  this  sort  cannot  be  removed 
from  a  state  court  to  the  federal  court,  as  the  federal  court 
could  not  entertain  jurisdiction  of  it  after  it  was  removed  i 
and,  if  such  case  were  removed,  it  would  remand  it.36 

as  Ante,  p.  19a 

84  MEXICAN  NAT.  R.  CO.  v.  DAVIDSON,  157  U.  S.  201,  15  Sup. 
Ct.  5G3,  39  L.  Ed.  672. 

3  5  SCOTT  v.  NEELY,  140  U.  S.  106,   11  Sup.  Ct.  712,  35  L.  Ed. 
358;    Cates  v.  Allen,  149  U.  S.  451,  13  Sup.  Ct.  977,  37  L.  Ed.  804.. 
Hughes  Fed.Jur. — 19 


290  CIRCUIT    COURT JURISDICTION    BY    REMOVAL.      (Ch.  13 

On  the  other  hand,  if  the  state  court  in  which  the  suit  was 
originally  brought  would  have  no  jurisdiction  over  it,  and  the 
case  was  removed  into  the  federal  court,  the  latter  court 
would  acquire  no  jurisdiction  thereby,  even  though  it  might 
be  a  case  which  might  have  been  originally  instituted  in  the 
federal  court.  In  such  case,  the  federal  court  would  not  re- 
mand, as  the  state  court  is  the  one  which  is  lacking  in  juris- 
diction, but  would  dismiss  the  case,  for  the  federal  court  could 
not  acquire  jurisdiction  by  removal  from  a  court  which  did 
not  have  jurisdiction  in  the  first  instance. 

A  good  illustration  of  this  principle  is  those  cases  where 
suits  have  been  instituted  in  a  state  court  to  enforce  certain 
provisions  of  the  interstate  commerce  act,  the  enforcement 
of  which  is  conferred  by  that  act  upon  the  federal  courts  alone. 
In  such  case  the  state  courts  will  have  no  jurisdiction,  and  if 
it  was  removed,  the  federal  courts  would  acquire  no  juris- 
diction, even  though  the  federal  courts  would  have  jurisdiction 
if  the  suit  had  originally  been  brought  there.86 

Where  a  case  is  removed  of  which  the  federal  court  would 
have  no  jurisdiction,  even  the  removing  party  could  question 
the  jurisdiction.  This  follows  necessarily  from  the  fact  that, 
if  the  want  of  jurisdiction  appears,  the  court  can  dismiss  the 
case  of  its  own  motion,  and  hence  either  party  can  ques- 
tion it." 

Under  this  branch  of  jurisdiction  of  cases  removed  on  the 
ground  of  a  federal  question  being  involved,  the  whole  case 
goes  up  if  a  substantial  federal  question  is  really  involved.  In 
such  case  the  court  obtaining  jurisdiction  on  the  ground  of  a 
federal  question  will  consider  all  the  issues  joined,  whether 
federal  or  not.88 


seAuracher  v.  Railroad  Co.  (C.  C.)  102  Fed.  1;  Sheldon  v.  Rail- 
road Co.  (C.  C.)  105  Fed.  785. 

8T  German  Savings  &  Loan  Soc.  v.  Dormitzer,  116  Fed.  471,  53  C. 
C.  A.  039. 

ss  Omaha  Horse  Ry.  Co.  v.  Tramway  Go.  (C.  C.)  32  Fed.  727;  Tex- 
as v.  Cattle  Co.  (C.  C.)  49  Fed.  593. 


§  114)  FEDERAL  QUESTIONS.  291 

The  party  entitled  to  remove  under  this  provision  is  simply 
the  defendant,  the  theory  of  the  right  to  remove  at  all  being 
that  it  is  necessary  to  protect  the  party  from  state  influences. 
The  plaintiff,  having  voluntarily  resorted  to  the  state  court  to 
assert  such  a  right,  could  not  complain  if  he  is  not  allowed, 
after  suing  in  that  court,  to  proceed  to  another.  Hence  in  this 
case  the  removal  is  given  to  the  defendant  or  defendants. 
This  has  been  construed  to  mean  all  of  the  defendants.  If 
they  are  all  necessary  parties,  they  must  all  join  in  the  peti- 
tion for  removal,  or  the  case  cannot  be  removed.39 

When,  however,  it  is  said  that  all  the  defendants  must 
join  in  the  petition  for  removal,  it  means  all  those  who  are 
necessary  parties  as  defendants.  The  right  is  not  defeated  by 
the  failure  of  nominal  or  formal  parties  to  join  in  the  peti- 
tion.40 

Even  important  parties  who  are  not  served,  and  who  do  not 
appear,  are  not  in  this  sense  parties  to  the  suit,  and  their 
failure  to  join  in  the  petition  will  not  defeat  the  right  of  re- 
moval. 

Tremper  v.  Schwabacher  41  was  a  suit  against  several  part- 
ners. Only  one  was  served  with  process.  The  others,  not 
being  served,  did  not  appear.  The  court  held  that  the  one  who 
was  served  could  remove  the  case,  though  the  others  did  not 
join  in  the  petition. 

The  question  what  parties  are  necessary  in  suits  in  the 
federal  courts  has  been  discussed  in  a  previous  connection,  to 
which  reference  is  now  made.42 


so  Chicago,  R.  I.  &  P.  R.  Co.  v.  Martin,  178  U.  S.  245,  20  Sup.  Ct. 
854,  44  L.  Ed.  1055 ;  German  Savings  &  Loan  Ass'n  v.  Dorniitzer,  116 
Fed.  471,  53  C.  C.  A.  639;  Miller  v.  Bank  (C.  C.)  116  Fed.  551. 

40  Henderson  v.  Cabell  (C.  C.)  43  Fed.  257;  Shattuck  v.  Insurance 
Co.,  58  Fed.  609,  7  C.  C.  A.  386. 

*i  (C.  C.)  84  Fed.  413. 

42  Ante,  pp.  212,  220. 


292  CIRCUIT    COURT — JURISDICTION    BY    REMOVAL.      (Ch.  13 

SUITS  BY  THE  UNITED  STATES. 

115.   The  federal  jurisdiction  by  removal  from  the  state  courts 
extends  to  suits  by  the  United  States. 

As  the  federal  courts  are  given  original  jurisdiction  of  these 
suits  by  the  first  section  of  the  act  of  August  13,  1888,  it  fol- 
lows that  the  nonresident  defendant  could  remove  such  a  suit 
into  the  federal  court  if  brought  in  a  state  court,  and  that, 
too,  independent  of  the  amount  involved,  as  it  has  been  decided 
that  the  federal  courts  have  original  jurisdiction  of  suits  by 
the  United  States,  even  though  the  amount  involved  is  less 
than  two  thousand  dollars.*' 

*»  U.  S.  v.  SAYWARD,  160  U.  S.  493,  16  Sup.  Ct  371,  40  L.  Ed.  508. 


§  116)         CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.  293 


CHAPTER  XIV. 

THE  CIRCUIT  COURTS  (Continued)— JURISDICTION  BY 
REMOVAL  (Continued). 

116.  Controversies  between  Citizens  of  Different  States. 

117.  Devices  to  Prevent  Removal. 

118.  Controversies  between  Citizens  of  the  Same  State  Claiming 

Lands  under  Grants  of  Different  States. 

119.  Controversies  between  Citizens  of  a  State  and  Foreign  States, 

Citizens  or  Subjects. 

120.  Parties  Entitled  to  Remove. 

121.  Separable  Controversies. 

122.  Removal  on  Ground  of  Prejudice  or  Local  Influenced 

123.  Removal  because  of  State  Denial  of  Equal  Civil  Rights? 

124.  Removal  of  Suits  against  Officers  or  Persons  Enforcing  the 

Internal  Revenue  Laws. 

CONTROVERSIES    BETWEEN    CITIZENS    OP    DIFFERENT 

STATES. 

116.  The  first  section  of  the  act  of  August  13,  1888,  gives 
the  federal  courts  jurisdiction  of  suits  of  a  civil  nature 
at  common  law  or  in  equity  in  which  there  shall  be  a 
controversy  between  citizens  of  different  states,  and 
in  which  the  matter  in  dispute  exceeds,  exclusive  of 
interest  and  costs,  the  sum  or  value  of  $2,000;  and 
the  second  section  gives  the  right  of  removal  in  such 
cases.  This  is  much  the  most  frequent  ground  of  re- 
moval in  actual  practice.  In  order  to  give  the  right 
of  removal,  the  requisites  must  concur  which  have 
beeu  discussed  in  connection  with  the  original  juris- 
diction of  such  suits. i 

If  the  suit,  for  instance,  is  not  such  a  suit  as  the  federal 
court  could  entertain  under  its  general  equity  jurisdiction, 
even  though  the  state  court  could  entertain  it,  like  a  suit  by 
a  simple-contract  creditor  to  set  aside  a  conveyance  which 

i  Ante,  p.  189. 


294  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

could  be  brought  in  a  state  court  by  virtue  of  a  state  statute, 
then  the  federal  courts  cannot  take  jurisdiction,  but  in  such 
case  would  have  to  remand.2 

In  this  class  of  cases,  also,  it  is  well  settled  that,  if  the 
court  has  jurisdiction  over  the  subject-matter  of  the  case,  it 
may  be  removed,  even  though  the  suit  is  not  brought  in  the 
district  of  the  defendant's  residence.3 

There  is  some  conflict  of  authority  on  the  question  wheth- 
er a  suit  is  removable  into  the  federal  courts  which  is  brought 
in  the  state  court  included  in  a  federal  district  where  neither 
plaintiff  nor  defendant  may  reside.  There  is  a  line  of  cases 
which  hold  that  in  such  case,  even  though  that  may  be  a 
question  of  personal  jurisdiction,  the  suit  cannot  be  removed 
unless  the  question  of  the  place  of  suit  is  waived  by  both 
plaintiff  and  defendant.4 

(But  the  better  and  preponderating  authority  is  to  the  effect 
that  the  question  of  the  district  of  suit  is  one  in  which  the  de- 
fendant, not  the  plaintiff,  is  the  one  interested.  Hence  a  de- 
fendant who  applies  for  the  removal  of  a  case  brought  in  a  dis- 
trict wherein  he  does  not  reside  is  entitled  to  it,  even  though 
the  plaintiff  does  not  live  in  that  district.5 

It  is  certainly  well  settled  that  the  question  of  the  place  of 
suit  is  not  a  question  of  jurisdiction  over  the  subject-matter. 
The  federal  courts  have  jurisdiction  if  the  controversy  is  be- 
tween citizens  of  different  states,  no  matter  where  they  may 
happen  to  reside.  If  a  suit  is  brought  in  a  district  where  nei- 
ther the  plaintiff  nor  the  defendant  resides,  and  that  suit  is 
brought  in  the  first  instance  in  a  federal  court,  it  is  a  subject- 
matter  within  the  jurisdiction  of  that  court.    The  defendant,  by 

2  SCOTT  v.  NEELY,  140  U.  S.  106,  11  Sup.  Ct.  712.  35  L.  Ed.  358; 
Cates  v.  Allen,  149  TJ.  S.  451,  13  Sup.  Ct.  883,  37  L.  Ed.  804;  GREE- 
LEY v.  LOWE,  155  U.  S.  58,  15  Sup.  Ct.  24,  39  L.  Ed.  69. 

3  MEXICAN  NAT.  R.  CO.  v.  DAVIDSON,  157  TJ.  S.  201,  15  Sup. 
Ct.  563,  39  L.  Ed.  672;  Virginia-Carolina  Chemical  Co.  v.  Insurance 
Co.  (C.  C.)  108  Fed.  451. 

4  Foulk  v.  Gray  (C.  C.)  120  Fed.  156. 

s  American  Finance  Co.  v.  Bostwick,  151  Mass.  19,  23  N.  E.  656. 


§  116)  CITIZENS  OF  DIFFERENT   STATES.  295 

appearing,  waives  all  objection  to  the  place  of  suit.  Hence 
the  Supreme  Court  has  held  that  this  is  undoubtedly  within 
the  jurisdiction  of  the  federal  courts,  and  that  the  place  of  suit 
is  a  mere  personal  privilege.6 

This  being  true,  it  is  difficult  to  see  why  a  defendant  who 
can  waive  the  privilege  by  appearing  and  pleading  in  an  orig- 
inal suit  cannot  equally  appear  in  a  state  court  and  remove 
his  case ;  and  hence  it  is  believed  that  such  a  case  can  be  re- 
moved, and  that  the  authorities  holding  that  doctrine  are  bet- 
ter founded  on  reason  and  better  in  accord  with  the  language 
of  the  act. 
Removal  as  affected  by  assignment. 

This  clause  limiting  removable  cases  to  those  cases  of  which 
the  circuit  courts  are  given  jurisdiction  by  the  first  section  has 
wrought  one  other  important  change  in  the  law,  which  should 
be  borne  in  mind  in  reading  the  decisions.  The  previous 
acts  did  not  have  such  a  clause,  and  hence  it  was  held  under 
them  that  the  clause  forbidding  the  assignee  to  bring  suit  un- 
less his  assignor  could  also  sue  applied  only  to  cases  originally 
instituted  in  the  federal  courts,  and  did  not  prevent  the  re- 
moval of  such  cases  when  originally  instituted  in  the  state 
courts.  But  the  above  change  in  the  law  has  placed  original 
suits  and  removable  cases  on  the  same  footing,  so  that  now\ 
a  suit  by  an  assignee  in  a  state  court  cannot  be  removed  into 
the  federal  court  on  the  ground  of  diverse  citizenship  unless 
it  could  have  been  originally  instituted  in  the  federal  court.7 
In  discussing  the  original  jurisdiction  of  the  courts,  it  has 
been  seen  that  all  the  parties  on  each  side  must  be  capable  of 
suing  or  being  sued.  This  same  principle  applies  to  cases  re- 
movable on  the  ground  of  diverse  citizenship.8 

e  Central  Trust  Co.  v.  McGeorge,  151  TJ.  S.  129,  14  Sup.  Ct.  286, 
38  L.  Ed.  98. 

t  MEXICAN  NAT.  R.  CO.  v.  DAVIDSON,  157  U.  S.  201,  15  Sup. 
Ct.  563,  39  L.  Ed.  672;  Board  of  Corn'rs  of  Delaware  County  v. 
Lock  Co.,  133  TJ.  S.  473,  10  Sup.  Ct.  399,  33  L.  Ed.  674. 

s  Ante,  p.  220 ;  Gage  v.  Carraher,  154  TJ.  S.  656.  14  Sup.  Ct.  1190,  25 
L.  Ed.  9S9 ;   Blake  v.  McKiin,  103  U.  S.  336,  26  L.  Ed.  5G3. 


29G  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

It  is  also  true  in  removal  as  in  original  cases  that  this  prin- 
ciple only  applies  to  necessary  parties,  and  that  the  joinder  of 
nominal  or  unnecessary  parties  will  not  defeat  the  right  of 
removal.* 

DEVICES  TO  PREVENT  REMOVAL. 

117.  The  removal  of  a  case  may  be  prevented  by  various  de- 
vices, as  by  assigning  the  cause  of  action  to  a  plaintiff 
incompetent  to  sue  in  the  federal  courts,  or  by  so 
framing  the  suit  as  to  make  parties  defendants  who 
would  defeat  the  jurisdiction;  and  such  devices  are 
successful  in  the  absence  of  bad  faith. 

It  has  been  seen  in  the  previous  discussion  10  that  devices  to 
confer  jurisdiction  upon  the  federal  courts  are  forbidden  by 
the  law.  It  is,  however,  a  rule  which  does  not  work  both 
ways.  Devices  to  prevent  such  jurisdiction  are  frequently  suc- 
cessful. 

In  Oakley  v.  Goodnow  ai  an  Iowa  corporation  which  had  a 
claim  against  a  citizen  of  New  York  transferred  it  to  another 
citizen  of  New  York  under  an  agreement  that  the  latter 
should  act  as  trustee  in  collecting  the  fund,  and  account  to  the 
assignor  for  it.  The  defendant  (the  law  not  then  limiting  the 
right  of  removal  to  nonresident  defendants)  attempted  to  re- 
move the  case  to  the  federal  court,  claiming  that  this  was  a 
mere  device  to  defeat  jurisdiction.  The  Supreme  Court,  how- 
ever, held  that  it  was  a  device  which  accomplished  its  pur- 
pose, and  that  his  only  relief  was  in  the  state  court. 

It  is  not  an  uncommon  practice  to  join  other  defendants 
for  the  purpose  of  defeating  jurisdiction. 

»  Patterson  v.  Railroad  Co.  (C.  C.)  Ill  Fed.  262;  Sully  v.  Drennan, 
113  U.  S.  287,  5  Sup.  Ct.  453,  28  L.  Ed.  1007;  St.  Louis  &  S.  F.  R.' 
Co.  v.  Wilson,  114  U.  S.  60,  5  Sup.  Ct.  738,  29  L.  Ed.  66;  Peper  v. 
Fordyce,  119  U.  S.  469,  7  Sup.  Ct.  287,  30  L.  Ed.  435;  Mahon  v. 
Somers  (C.  C.)  112  Fed.  174;  Corbitt  v.  Bank  (C.  C.)  113  Fed.  417; 
Bacon  v.  Rives,  106  U.  S.  99,  1  Sup.  Ct.  3,  27  L.  Ed.  69. 

io  Ante,  p.  246.  «  118  U.  S.  43,  6  Sup.  Ct.  944,  30  L.  Ed.  61. 


§  117)  DEVICES   TO   PREVENT   REMOVAL.  297 

In  personal  injury  suits,  for  instance,  against  nonresident 
corporations,  it  is  not  uncommon  for  a  plaintiff  who  may  de- 
sire to  prevent  removal  to  join  with  the  corporation  itself  the 
employe  who  was  responsible  for  the  accident,  if  his  citizen- 
ship is  the  same  as  that  of  the  plaintiff.  Under  such  circum- 
stances the  right  of  removal  would  be  defeated,  for  the  plaintiff 
undoubtedly  has  the  right,  in  an  honest  discretion,  to  bring  his 
suit  this  way;  and  the  right  of  removal  would  be  defeated, 
even  though  the  parties  joined  might  have  different  defenses, 
for  the  right  of  removal  is  judged  independent  of  the  defense, 
and  the  court  has  no  right  to  dictate  to  the  plaintiff  how  he 
should  bring  his  suit.12 

On  the  other  hand,  there  are  some  strong  cases  which  hold 
that  where  such  a  joinder  is  made  with  the  knowledge  on  the 
plaintiff's  part  that  the  allegations  on  which  it  is  based  are 
false,  and  that  he  cannot  expect  to  recover,  and  with  the  in- 
tent on  his  part  to  defeat  the  right  of  removal,  he  will  fail 
in  his  object,  and  the  court,  on  proper  charges  in  the  petition, 
will  permit  such  removal.  Such  a  right  of  removal,  however, 
if  sustainable  at  all  under  these  authorities,  rests  upon  the 
necessity  of  practically  proving  bad  faith.18 

Rearrangement  of  Parties. 

In  passing  upon  the  right  of  removal,  the  same  principle  ap- 
plies as  in  original  suits.  The  court  judges  of  the  right  by  the 
actual  interest  of  the  parties,  and  not  by  the  method  in  which 
the  pleader  may  choose  to  arrange  them.14 

"Charman  v.  Railroad  Co.  (C.  0.)  105  Fed.  449;  Chicago,  R.  I. 
&  P.  R.  Co.  v.  Martin,  178  U.  S.  245,  20  Sup.  Ct.  854,  44  L.  Ed.  1055; 
Person  v.  Railroad  Co.  (C.  C.)  118  Fed.  342.  Compare  Helms  v. 
Railroad  Co.  (C.  C.)  120  Fed.  389. 

is  Hukill  v.  Railroad  Co.  (D.  C.)  72  Fed.  745;  Union  Terminal  R. 
Co.  v.  Railroad  Co.  (C.  C.)  119  Fed.  209. 

i*  MacGinniss  v.  Mining  Co.,  119  Fed.  96,  55  C.  C.  A.  648;  Re- 
moval Cases,  100  U.  S.  457,  25  L.  Ed.  593;  Evers  v.  Watson,  156  U. 
S.  527,  15  Sup.  Ct.  430,  39  L.  Ed.  520. 


298 


CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.       (Ch.  14 


CONTROVERSIES     BETWEEN    CITIZENS     OF    THE     SAME 

STATE  CLAIMING  LANDS  UNDER  GRANTS  OF 

DIFFERENT  STATES. 

118.  As  the  federal  courts  are  given  jurisdiction  of  contro- 
versies between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states,  such  a  case  would 
be  removable. 

In  such  case,  however,  there  is  a  special  provision  in  section 
3  of  the  act  of  August  13,  1888,  which  shows  the  method  under 
which  it  is  necessary  to  make  it  appear  to  the  court  that  such 
a  question  is  involved.  The  language  of  that  section  is  as 
follows :  "And  if  in  any  action  commenced  in  a  state  court  the 
title  of  land  be  concerned,  and  the  parties  are  citizens  of  the 
same  state,  and  the  matter  in  dispute  exceed  the  sum  or  value 
of  two  thousand  dollars,  exclusive  of  interest  and  costs,  the 
sum  or  value  being  made  to  appear,  one  or  more  of  the  plain- 
tiffs or  defendants,  before  the  trial,  may  state  to  the  court, 
and  make  affidavit  if  the  court  require  it,  that  he  or  they  claim 
and  shall  rely  upon  a  right  or  title  to  the  land  under  a  grant 
from  a  state,  and  produce  the  original  grant,  or  an  exemplifi- 
cation of  it,  except  where  the  loss  of  public  records  shall  put  it 
out  of  his  or  their  power,  and  shall  move  that  any  one  or 
more  of  the  adverse  party  inform  the  court  whether  he  or 
they  claim  a  right  or  title  to  the  land  under  a  grant  from 
some  other  state,  the  party  or  parties  so  required  shall  give 
such  information,  or  otherwise  not  be  allowed  to  plead  such 
grant  or  give  it  in  evidence  upon  the  trial ;  and  if  he  or  they 
inform  that  he  or  they  do  claim  under  such  grant,  any  one  or 
more  of  the  party  moving  for  such  information  may  then,  on 
petition  and  bond,  as  hereinbefore  mentioned  in  this  act,  re- 
move the  cause  for  trial  to  the  circuit  court  of  the  United 
States  next  to  be  holden  in  such  district ;  and  any  one  of  ei- 
ther party  removing  the  cause  shall  not  be  allowed  to  plead 


§  119)      CITIZENS   AND    FOREIGN    STATES,  SQBJECTS,  ETC.       299 

or  give  evidence  of  any  other  title  than  that  by  him  or  them 
stated  as  aforesaid  as  the  ground  of  his  or  their  claim."  16 


CONTROVERSIES  BETWEEN  CITIZENS  OF  A  STATE  AND 
FOREIGN  STATES,  CITIZENS  OR  SUBJECTS. 

119.  In  such  case  the  right  of  removal  exists,  as  it  is  a  class 
of  which  the  federal  courts  are  given  original  jurisdic- 
tion by  the  first  section  of  the  act  of  August  13,  1888. 

It  is  well  settled,  as,  indeed,  is  plain  from  the  language  of 
the  statute  itself,  that  this  class  does  not  cover  controversies 
between  aliens.  Of  such  cases  the  federal  courts  have  no  juris- 
diction.18 

There  is  a  conflict  of  decision  on  the  question  whether  a 
federal  court  would  have  jurisdiction  in  a  case  where  citi- 
zens of  a  state  are  plaintiffs,  and  citizens  of  a  different  state 
and  aliens  are  defendants. 

In  Tracy  v.  Morel  17  it  is  held  that  this  latter  is  a  casus 
omissus  in  the  statute,  and  that  the  federal  courts  would  not 
have  jurisdiction.  On  the  other  hand,  in  Roberts  v.  Pacific 
&  A.  R.  &  Nav.  Co.18  Judge  Hanford,  in  a  well-considered 
opinion,  holds  that  such  a  case  would  fall  within  the  federal 
jurisdiction.  It  seems  to  the  author  that,  however  liberally 
the  removal  act  ought  to  be  construed,  the  line  of  decisions 
holding  that  the  case  does  not  fall  within  the  jurisdiction  of 
the  federal  courts  best  accords  with  the  statute.  If  a  federal 
court  has  jurisdiction,  it  must  be  under  one  of  two  phrases  in 
the  first  section  of  the  Act  of  August  13,  1888 — either  on  the 
language,  (1)  "in  which  there  shall  be  a  controversy  between 
citizens  of  different  states" ;  or  (2)  "a  controversy  between 
citizens  of  a  state  and  foreign  states,  citizens  or  subjects." 

IB  U.  S.  Comp.  St.  1901,  p.  510. 

i«  Merchants'  Cotton  Press  &  Storage  Co.  v.  Insurance  Co.,  151 
U.  S.  368,  14  Sup.  Ct.  367,  38  L.  Ed.  195;  Pooley  v.  Luco  (C.  C.)  72 
Fed.  561. 

17  (C.  C.)  88  Fed.  801.  is  (C.  C.)  104  Fed.  577. 


300  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

If  the  rulings  of  the  federal  courts  in  other  connections  to 
the  effect  that  a  "controversy  between  citizens  of  different 
states"  means  a  controversy  in  which  all  the  citizens  on  one 
side  and  all  the  citizens  on  the  other  are  citizens  of  different 
states,  jurisdiction  in  the  case  supposed  could  certainly  not  be 
supported  upon  that,  for  one  of  the  parties  defendant  in  such 
case  is  not  a  citizen,  but  an  alien.  On  the  other  hand, 
if  that  same  principle  of  construction  is  applied  to  the  second 
class,  a  controversy  in  the  case  supposed  is  not  between  citi- 
zens of  a  state  and  foreign  states,  citizens  or  subjects,  for  one 
of  the  defendants  is  neither  a  foreign  state,  citizen  nor  sub- 
ject, but  a  citizen  of  a  different  state.  This  would  seem  to  be 
the  necessary  construction  of  the  statute,  and  this  is  the  view 
taken  by  the  standard  work  on  the  subject.19 

A  suit  by  an  alien  against  a  corporation,  nonresident  in  the 
district  where  the  suit  is  brought,  is  removable  by  the  non- 
resident corporation.80 


PARTIES  ENTITLED  TO  REMOVE. 

120.  Under  all  the  classes  of  cases  previously  discussed,  except 
cases  arising  under  the  Constitution  and  laws  of  the 
United  States,  the  right  of  removal  is  in  the  defendant, 
provided  he  is  a  nonresident. 

As  the  right  to  confer  jurisdiction  in  such  cases  on  the  fed- 
eral courts  is  based  on  the  theory  of  protection  from  local 
prejudice  or  injustice,  it  is  natural  that  only  the  nonresident 
should  have  the  right  to  remove  in  cases  where  the  juris- 
diction does  not  depend  upon  a  federal  question ;  and  the 
statute  follows  this  theory  in  the  second  sentence  of  section 
2  of  the  act  of  August  13,  1888. 

Here,  too,  the  principle  applies  that  all  of  the  defendants 
who  are  necessary  parties  must  join  in  the  petition  to  remove, 

is  Black,  Dill.  Rem.  Causes,  §  34. 

20  Stalker  v.  Car  Co.  (C.  C.)  81  Fed.  9S9. 


§  121)  SEPARABLE    CONTROVERSIES.  301 

and  that  all  must  be  nonresidents.  Even  though  the  citizen- 
ship might  otherwise  be  such  as  would  give  the  federal  courts 
jurisdiction  over  the  subject-matter,  still  in  this  case  only 
the  nonresident  can  remove,  and  this  is  well  settled  by  the 
authorities.21 

If,  however,  the  permanent  residence  of  the  defendant  is  out- 
side of  the  district  where  suit  is  brought,  his  mere  tem- 
porary residence  in  the  district  will  not  defeat  his  right  of 
removal.22 

SEPARABLE  CONTROVERSIES. 

121.  The  jurisdiction  of  the  circuit  court  by  removal  from, 
state  courts  extends  to  controversies  wholly  between 
citizens  of  different  states,  and  which  can  be  fully  de- 
termined as  between  them,  -when  removal  could  be  had 
as  to  any  one  or  more  of  the  defendants  under  the  gen- 
eral principles  heretofore  discussed;  such  right  of  re- 
moval being  granted  in  such  cases  to  any  one  or  more 
defendants  actually  interested. 

In  order  to  justify  a  removal  on  this  ground,  the  controversy 
in  a  suit  must  be  a  separate  and  distinct  cause  of  ac- 
tion, on  which  a  separate  suit  could  be  maintained  as 
between  the  parties  thereto,  independent  of  the  others, 
and  not  a  mere  incidental  controversy  growing  out  of 
the  main  suit. 

This  class  of  removal  cases  is  commonly  called  separable  con- 
troversies. 

In  order  to  obtain  a  removal  on  this  ground,  it  must  appear 
from  the  plaintiff's  pleadings  that  the  controversy 
which  it  is  desired  to  remove  is  a  separable  controversy. 

The  third  sentence  of  section  2  of  the  act  of  August  13,  1888, 
provides :  "And  when  in  any  suit  mentioned  in  this  section 
there  shall  be  a  controversy  which  is  wholly  between  citizens 
of  different  states,  and  which  can  be  fully  determined  as  be- 

ai  Martin  v.  Snyder,  148  U.  S.  663,  13  Sup.  Ct.  706,  37  L.  Ed.  602; 
Eddy  v.  Casas  (C.  C.)  118  Fed.  363;  Parkinson  v.  Barr  (C.  C.)  105 
Fed.  81;  Union  Terminal  R.  Co.  v.  Railroad  Co.  (C.  C.)  119  Fed.  209. 

22  Chiatovich  v.  Hanchett  (C.  C.)  78  Fed.  193. 


302  CIRCUIT  COURT JURISDICTION  BY  REMOVAL.       (Cll.  14 

tween  them,  then  either  one  or  more  of  the  defendants  actual- 
ly interested  in  such  controversy  may  remove  said  suit  into 
the  circuit  court  of  the  United  States  for  the  proper  district." 

This  is  the  class  of  removable  cases  commonly  spoken  of 
as  separable  controversies — a  class  which  has  been  much  dis- 
cussed in  the  courts.  In  considering  it,  it  must  be  observed 
in  the  first  place  that  it  applies  only  to  controversies  between 
citizens  of  different  states,  so  that  controversies  between  citi- 
zens and  aliens  are  not  included.23 

In  this  class  of  cases,  although  the  citizenship  of  the  parties 
on  whom  the  right  of  removal  is  conferred  can  be  made 
to  appear  in  the  petition  for  removal,  and  need  not  neces- 
sarily appear  in  the  plaintiff's  pleading,  as  such  an  allegation 
is  not  a  part  of  any  system  of  pleading,  it  must  nevertheless  ap 
pear  from  the  plaintiff's  pleading  that  the  controversy  which  it 
is  desired  to  remove  is  a  separable  controversy.  Its  capacity 
of  severance  must  be  decided  solely  upon  the  plaintiff's  plead- 
ing, not  upon  the  petition  for  removal,  nor  upon  the  defense 
set  up.  There  may  be  separate  issues  in  a  case,  but  they  do 
not  constitute  separable  controversies.  There  may  be  defenses 
which  are  good  as  to  some,  and  not  as  to  others,  but  they  do 
not  make  separable  controversies.24 

The  courts  have  narrowed  very  much  the  cases  which  are 
removable  under  this  act.  As  has  been  stated  above,  the 
fact  that  the  issues  or  defenses  are  separate  does  not  make 
the  controversy  separate.  It  is  equally  well  settled  that  even 
a  controversy  which  is  separable  does  not  give  a  ground  of 
removal  if  that  controversy  is  a  question  merely  incidental  to 
the  main  controversy  in  the  cause,  and  not  of  itself  the  prin- 

23  Creagh  v.  Society  (C.  C.)  88  Fed.  1. 

24  Ayres  v.  Wiswall,  112  U.  S.  187,  5  Sup.  Ct.  90,  28  L.  Ed.  693; 
Fidelity  Ins.,  Trust  &  Safe  Deposit  Co.  v.  Huntington,  117  TJ.  S.  280. 
6  Sup.  Ct.  733,  29  L.  Ed.  898;  Putnam  v.  Ingraham,  114  U.  S.  57,  5 
Sup.  Ct.  746,  29  L.  Ed.  65;  Louisville  &  N.  R.  Co.  v.  Wangelin,  132 
U.  S.  599,  10  Sup.  Ct.  203,  33  L.  Ed.  473;  Riser  v.  Railroad  Co.  (C.  C.) 
116  Fed.  215. 


§  121)  SEPARABLE    CONTROVERSIES.  303 

cipal  controversy.  For  instance,  Graves  v.  Corbin  25  was  a 
bill  to  subject  partnership  assets  to  the  payment  of  debts,  and 
to  set  aside,  as  fraudulent,  certain  judgments  confessed  by  the 
partnership.  It  was  held  that  one  of  these  judgment  cred- 
itors could  not  remove  the  case,  as  the  question  of  the  va- 
lidity of  his  judgment,  though  depending  on  different  grounds, 
was  a  mere  incident  to  the  main  litigation,  which  was  to  wind 
up  the  partnership  assets. 

So,  in  the  leading  case  of  Torrence  v.  Shedd,26  which  was  a 
partition  suit,  a  dispute  between  two  of  the  parties  in  that 
suit  as  to  their  relative  interests  in  the  share  of  one  of  these 
parties  was  not  so  separable  as  to  give  the  right  of  removal. 

In  Bellaire  v.  Baltimore  &  O.  R.  Co.27  which  was  a  pro- 
ceeding by  the  city  of  Baltimore  to  condemn  a  right  of  way 
for  a  street  across  a  strip  of  land,  to  which  the  owner  and 
the  lessee  were  made  parties,  it  was  held  that  the  lessee  could 
not  remove,  although  its  interests  would  be  separately  valued, 
as  that  was  a  mere  incident  to  the  main  question,  which  was 
the  right  of  condemnation  at  all. 

In  Colburn  v.  Hill,28  which  was  a  creditors'  suit  to  wind 
up  a  corporation,  and  distribute  its  assets,  and  exclude  cer- 
tain defendants  from  sharing  in  the  assets  on  the  ground  that 
a  certain  contract  held  by  them  with  the  corporation  was  in- 
valid, it  was  held  that  these  defendants  could  not  remove  the 
case  on  the  ground  of  a  separable  controversy. 

The  Supreme  Court  has  repeatedly  said  that,  in  order  to 
justify  a  removal  on  this  ground,  the  controversy  in  the  suit 
must  be  a  separate  and  distinct  cause  of  action,  on  which  a 
separate  suit  might  have  been  maintained  as  between  the  par- 
ties therein  interested,  independent  of  the  others/ 


29 


2  5  132  U.  S.  571,  10  Sup.  Ct.  196,  33  L.  Ed.  462. 

2  6  TORRENCE  v.  SHEDD,  144  U.  S.  527,  12  Sup.  Ct  726,  36  L. 
Ed.  528. 

87  146  U.  S.  117,  13  Sup.  Ct.  16,  36  L.  Ed.  910. 

ss  101  Fed.  500,  41  C.  C.  A.  467. 

29  HYDE  v.  RUBLE,  104  U.  S.  407,  26  L.  Ed.  823;  Fraser  v. 
Jennison,  106  U.  S.  191,  1  Sup.  Ct.  171,  27  L.  Ed.  131. 


304  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

Under  these  principles,  suits  on  joint  or  joint  and  several 
contractual  liabilities  are  not  removable  by  some  of  the  de- 
fendants. If  the  plaintiff  elects  to  bring  his  suit  in  such  a 
shape  as  to  claim  a  joint  liability  against  the  defendants  on 
contract,  it  is  not  for  them  to  prevent  him  from  trying  his 
suit  in  his  own  way ;  and  part  of  them  cannot,  therefore,  ob- 
tain a  removal  on  this  ground.30 

On  the  same  principle,  a  case  which  appears  from  the 
plaintiff's  declaration  to  be  a  joint  action  in  tort  against  sev- 
erl  defendants  cannot  be  removed  by  one  of  those  defend- 
ants.81 

There  have  been  many  interesting  decisions  on  the  ques- 
tion of  suits  for  personal  injuries  where  both  the  defendant 
corporation  and  the  employe  causing  the  accident  are  sued. 
In  such  case,  if,  as  far  as  the  pleadings  show,  the  cause  of  ac- 
tion is  a  joint  one,  it  cannot  be  removed  by  one  of  the  two 
defendants.  This,  however,  though  to  a  certain  extent  a  ques- 
tion of  pleading,  depends  upon  the  further  question  whether 
such  suits  are,  in  fact  and  in  law,  joint  suits  against  the  em- 
ployer and  employe. 

In  the  case  of  Chesapeake  &  O.  Ry.  Co.  v.  Dixon,82  refer- 
red to  in  a  previous  connection,  the  Supreme  Court  was  care- 
ful to  base  its  opinion  upon  the  fact  that  the  declaration  al- 
leged joint  negligence;    and  the  decision  was  influenced  to 

so  Louisville  &  N.  R.  Co.  v.  Ide,  114  U.  S.  52,  5  Sup.  Ct.  735,  29  L. 
Ed.  63;  STONE  v.  SOUTH  CAROLINA,  117  U.  S.  430,  6  Sup.  Ct. 
799,  29  L.  Ed.  962;  Western  Union  Tel.  Co.  v.  Brown  (C.  C.)  32  Fed. 
337;  Guarantee  Co.  of  North  America  v.  Trust  Co.  80  Fed.  766,  26 
C.  C.  A.  146  (reversed  173  U.  S.  582,  19  Sup.  Ct.  551,  43  L.  Ed.  818. 
but  not  on  this  point). 

si  Pirie  v.  Tvedt,  115  U.  S.  41,  5  Sup.  Ct.  1034,  29  L.  Ed.  331. 
CHESAPEAKE  &  O.  RY.  CO.  v.  DIXON,  179  U.  S.  131,  21  Sup.  Ct. 
67,  45  L.  Ed.  121;  Marrs  v.  Felton  (C.  C.)  102  Fed.  775;  Central  Ohio 
R.  Co.  v.  Mahoney,  114  Fed.  732,  52  C.  C.  A.  364;  Riser  v.  Railroad 
Co.  (C.  C.)  116  Fed.  215. 

32  179  u.  S.  131,  21  Sup.  Ct.  67,  45  L.  Ed.  121.  See,  also,  Southern 
Ry.  Co.  v.  Carson,  194  U.  S.  136,  24  Sup.  Ct.  609,  48  L.  Ed.  907. 


§  121)  SEPARABLE    CONTROVERSIES.  305 

some  extent  by  the  fact  that  in  Kentucky,  where  the  action 
arose,  the  decisions  were  that  a  joint  action  by  an  injured 
party  against  an  employer  and  employe  was  one  in  which  they 
were  jointly  liable.  But  in  the  recent  case  of  Helms  v.  North- 
ern Pac.  R.  Co.33  Judge  Amidon,  in  an  exceedingly  well 
considered  opinion,  reviewing  the  authorities,  including  the 
above-named  Supreme  Court  case,  held  that  under  certain 
circumstances,  at  least,  such  a  suit  would  not  be  a  suit 
for  a  joint  tort;  that  the  liability  of  a  master  and  servant 
rested  on  different  grounds;  and  that,  unless  it  appeared 
from  the  declaration,  or  at  least  was  consistent  with  the 
declaration,  that  the  negligence  complained  of  was  such  a 
negligence  as  gave  a  joint  cause  of  action,  the  defendant  could 
remove.  The  case  was  a  suit  by  a  servant  against  the  fellow 
servant  who  caused  the  negligence,  and  the  corporation  who 
employed  them  both.  At  common  law  the  corporation  would 
not  have  been  liable,  on  account  of  the  fellow-servant  prin- 
ciple, but  was  made  liable  by  a  state  statute.  Consequently  he 
held  that  the  liability  of  the  defendant  employe  was  on  the 
ground  of  negligence,  and  that  of  the  company  on  the  lan- 
guage of  the  statute,  which  did  not  necessarily  require  negli- 
gence, and  hence  that  the  causes  of  action  were  separate,  and 
that  the  case  could  be  removed. 

In  separable  controversies  the  principle  also  applies  that  the 
right  of  removal  depends  upon  those  who  are  necessary  par- 
ties, grouped  or  rearranged  according  to  the  actual  interests 
of  the  parties,  and  not  according  to  the  mere  fancy  of  the  plead- 
er.34 

A  party  is  not  a  necessary  party  who  has  not  been  served 
with  process  and  brought  before  the  court.  In  Berry  v.  St. 
Louis  &  S.  F.  R.  Co.,35  which  was  a  suit  against  a  resident  and 
nonresident,  and  in  which  process  was  not  served  on  the  resi- 

38  (C.  C.)  120  Fed.  3S9. 

3  4  Geer  v.  Alkali  Works,  190  U.  S.  428,  23  Sup.  Ct.  807,  47  L.  Ed. 
1122;   Lamm  v.  Copper  Go.  (C.  0.)  Ill  Fed.  241. 
«e  (C.  C.)  118  Fed.  911. 
Hughes  Fed.Jur. — 20 


306  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

dent  defendant,  it  was  held  that  the  nonresident  could  remove 
the  case,  even  though  the  liability  asserted  was  joint  and 
several,  as  the  plaintiff,  by  not  bringing  the  resident  defend- 
ant into  court,  had  voluntarily  elected  to  make  the  controversy 
separable. 

In  order  to  sustain  a  removal  on  the  ground  of  separable 
controversy,  it  is  also  necessary — as,  indeed,  is  stated  in  the 
statute — that  the  controversy  must  be  fully  determinable  as  be- 
tween the  parties  to  that  controversy.86 

The  following  are  instances  of  controversies  held  separable 
under  this  sentence  of  the  statute : 

A  suit  to  avoid  an  alleged  fraudulent  transfer  between  two 
corporations,  to  which  the  directors  of  one  of  the  corporations 
were  made  parties,  though  not  for  the  purpose  of  any  ac- 
tual relief  against  them,  was  held  removable,  though  the 
plaintiff  and  some  of  the  directors  were  citizens  of  the  same 
state.87 

A  suit  against  a  corporation  alleged  to  be  insolvent,  and 
a  second  defendant  alleged  to  have  assumed  its  debts,  was 
held  to  be  removable  by  the  second  defendant.88 

A  suit  involving  the  liability  of  the  officers  of  a  corporation 
for  damages  for  alleged  misconduct  as  such  officers,  no  con- 
spiracy or  concerted  action  among  them  being  alleged,  was 
held  removable  by  some  of  these  officers.89 

A  suit  against  two  defendants  in  tort  on  entirely  discon- 
nected grounds  was  held  to  be  removable.40 

A  suit  by  a  stockholder  against  his  corporation  and  a  sec- 
ond corporation,  attacking  the  management  of  the  first  cor- 
se East  Tennessee,  V.  &  G.  R.  Co.  v.  Grayson,  119  TJ.  S.  240,  7  Sup. 
Ct.  190,  30  L.  Ed.  382;  Wilson  v.  Oswego  Tp.,  151  TJ.  S.  56,  14  Sup. 
Ct.  259,  38  L.  Ed.  70;  Merchants'  Cotton  Press  &  Storage  Co.  v.  In- 
surance Co.,  151  U.  S.  368,  14  Sup.  Ct.  367,  3S  L.  Ed.  195. 

37  Geer  v.  Alkali  Works,  190  TJ.  S.  428,  23  Sup.  Ct.  807,  47  L.  Ed. 
1122. 

3  8  Mecke  v.  Mineral  Co.,  93  Fed.  697,  35  C.  C.  A.  151 

«8  Youtsey  v.  Hoffman  (C.  C.)  108  Fed.  693. 

40  Coker  v.  Mills  (C.  C.)  110  Fed.  803. 


§  121)  SEPARABLE    CONTROVERSIES.  307 

poration  by  the  second,  was  held  removable  by  the  second, 
as  the  cause  of  action  asserted  was  one  in  which  the  stock- 
holder and  his  own  corporation  were  practically  interested 
alike,  and  against  the  second.41 

A  bill  to  quiet  title  against  several  defendants  not  claim- 
ing through  any  common  source  was  held  removable  by  some 
of  these  defendants.42 

On  the  other  hand-,  in  Little  v.  Giles  43  a  suit  to  quiet  title, 
which  alleged  that  the  defendants  were  conspirators  in 
their  efforts  to  cloud  the  title,  was  held  not  to  be  a  separable 
controversy. 

The  parties  entitled  to  remove  on  the  ground  of  a  sepa- 
rable controversy  are,  in  the  language  of  the  statute,  either 
one  or  more  of  the  defendants  actually  interested.44 

Does  This  Apply  to  Resident  Defendants? 

There  is  a  difference  of  decision  on  the  question  whether 
this  right  of  removal  under  the  separable  controversy  clause 
is  conferred  on  any  defendants,  or  simply  on  nonresident  de- 
fendants. On  the  one  hand,  it  is  urged  that  the  reason  for 
giving  the  removal  is  the  same  as  in  any  other  case  where 
it  is  limited  to  nonresidents,  and  that  this  must  have  been  the 
policy  of  Congress.  On  the  other  hand,  it  is  urged  that  the 
language  of  the  statute  does  not  limit  the  right  to  nonresident 
defendants.46 

A  careful  perusal  of  the  statute  would  seem  to  indicate  that 
the  authorities  holding  any  defendant,  whether  resident  or 
not,  entitled  to  remove,  best  accord  with  its  language.  Where 
the  language  of  the  statute  itself  is  plain,  it  is  unnecessary  to 
resort  to  rules  of  construction  or  policy.  A  legislature  is 
presumed   to  have   said  what  it  meant,  and  to  have  meant 

4i  Lamm  t.  Copper  Co.  (C.  C.)  Ill  Fed.  241. 
42  Carothers  v.  Smelting  Co.  (C.  C.)  116  Fed.  947. 
4  3  118  U.  S.  596,  7  Sup.  Ct  32,  30  L.  Ed.  269. 
*4  Rand  v.  Walker,  117  U.  S.  340,  6  Sup.  Ct.  769,  29  L.  Ed.  907. 
4  6  Stanbrough  v.  Cook  (C.  C.)  38  Fed.  369,  3  L.  R.  A.  400;  Tburber 
v.  Miller,  67  Fed.  371,  14  C.  C.  A.  432. 


308  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

what  it  said.  When  this  entire  section  is  examined,  it  is  to  be 
observed  that  the  first  section,  which  gives  the  right  of  re- 
moval in  federal  questions,  confers  it  upon  the  defendant  or 
defendants  whether  they  are  resident  or  not.  Then  the  sec- 
ond section,  which  gives  the  right  of  removal  on  the  ground 
of  citizenship,  gives  the  right  only  to  the  defendant  or  de- 
fendants who  are  nonresidents.  Then  comes  the  third  clause, 
which  is  the  one  under  discussion,  and  which  simply  speaks 
of  the  defendants,  and  says  nothing  about  their  residence. 
Then  the  fourth  clause,  conferring  the  right  in  cases  of  prej- 
udice or  local  influence,  limits  it  to  the  defendant  who  is  a  citi- 
zen of  another  state.  Congress,  in  thus  varying  the  language 
in  these  different  sentences  of  the  same  section,  must  be  pre- 
sumed to  have  done  so  intentionally;  and  it  would  seem  to 
be  beyond  the  purview  of  the  courts  to  read  into  its  act  a  sen- 
tence that  it  has  deliberately  inserted  in  one  place  and  omit- 
ted in  another.  In  the  judgment  of  the  author,  therefore,  the 
defendant,  whether  resident  or  not,  ought  to  have  the  right 
of  removal  on  this  ground. 

It  is  important  to  observe  in  the  consideration  of  this  sec- 
tion that  the  effect  of  the  removal  of  a  separable  controversy 
is  to  take  with  it  not  simply  that  controversy,  but  the  en- 
tire suit.  It  was  not  the  intent  of  Congress  to  split  a  suit  up 
into  different  parts,  and  leave  it  to  be  considered  by  differ- 
ent courts ;  and  the  express  language  of  the  act  itself  is  that 
when  a  controversy  exists  in  a  suit,  and  that  is  removed,  the 
suit  itself  goes  with  it.46 

And  this  is  true  even  though  the  effect  may  be  to  take 
into  the  federal  court,  along  with  this  separable  controversy, 
other  grounds  of  action  of  which  the  court  would  not  have 
had  jurisdiction,  had  they  been  brought  in  the  federal  court 
independently.*1 

*e  BARNEY  v.  LATHAM,  103  U.  S.  205,  26  L.  Ed.  514 ;  Connell 
y.  Smiley,  156  U.  S.  335,  15  Sup.  Ct.  353,  39  L.  Ed.  443;  Wabash,  St. 
L.  &  P.  R.  Co.  v.  Trust  Co.  (C.  C.)  23  Fed.  513. 

«7  Hoge  v.  Insurance  Office  (C.  C.)  103  Fed.  513. 


§  122)  PREJUDICE    OR   LOCAL   INFLUENCE.  309 


REMOVAL  ON  GROUND  OF  PREJUDICE  OR  LOCAL 
INFLUENCE. 

122.  This  ground  entitles  the  nonresident  defendant  to  re- 
move, but  only  on  proof  of  the  existence  of  such  preju- 
dice or  local  influence. 

The  fourth  sentence  of  the  act  regulating  removal  of  cases 
provides  as  follows:  "And  where  a  suit  is  now  pending,  or 
may  be  hereafter  brought,  in  any  state  court,  in  which  there 
is  a  controversy  between  a  citizen  of  the  state  in  which  the 
suit  is  brought  and  a  citizen  of  another  state,  any  defendant, 
being  such  citizen  of  another  state,  may  remove  such  suit 
into  the  circuit  court  of  the  United  States  for  the  proper  dis- 
trict, at  any  time  before  the  trial  thereof,  when  it  shall  be 
made  to  appear  to  said  circuit  court  that,  from  prejudice  or 
local  influence,  he  will  not  be  able  to  obtain  justice  in  such 
state  court,  or  in  any  other  state  court  to  which  the  said  de- 
fendant may,  under  the  laws  of  the  state,  have  the  right,  on  ac- 
count of  such  prejudice  or  local  influence,  to  remove  said 
cause:  provided,  that  if  it  further  appear  that  said  suit  can 
be  fully  and  justly  determined  as  to  the  other  defendants  in  the 
state  court,  without  being  affected  by  such  prejudice  or  local 
influence,  and  that  no  party  to  the  suit  will  be  prejudiced  by 
a  separation  of  the  parties,  the  said  circuit  court  may  direct 
the  suit  to  be  remanded,  so  far  as  relates  to  such  other  de- 
fendants, to  the  state  court,  to  be  proceeded  with  therein." 

The  elaborate  provisions  in  the  act  of  August  13,  1888,  on 
the  subject  of  removals  on  this  ground,  include  the  provisions 
of  the  old  acts,  and  hence  it  is  settled  that  they  supersede  and 
repeal  the  previous  acts.48 

It  will  be  observed  that  the  language  of  this  sentence  is 
quite  different  from  those  of  the  three  preceding  sentences. 
The  first  limits  the  removal  of  cases  on  the  ground  of  a  fed- 

«  Fisk  v.  Henarie,  142  U.  S.  459,  12  Sup.  Ct.  207,  35  L.  Ed.  1080 ; 
Hanrick  v.  Hanrick,  153  U.  S.  192,  14  Sup.  Ct.  835,  38  L.  Ed.  685. 


310  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

eral  question  to  those  of  which  the  circuit  courts  are  given 
original  jurisdiction  by  the  preceding  section.  The  second, 
regulating  the  removal  of  entire  controversies  on  the  ground 
of  citizenship,  also  applies  only  to  those  cases  of  which  the 
circuit  courts  are  given  jurisdiction  by  the  preceding  sec- 
tion. The  third,  authorizing  removal  on  the  ground  of  a  sep- 
arable controversy,  limits  such  right  to  "any  suit  mentioned 
in  this  section,"  which  amounts  to  the  same  thing.  The  fourth 
contains  no  such  qualifying  clause,  and,  independent  of  author- 
ity, it  may  very  well  be  questioned  whether  this  qualification 
was  intended  to  be  inserted.  However,  the  Supreme  Court, 
in  Ex  parte  Pennnsylvania  Co.,49  in  which  the  question  in- 
volved was  whether  the  two  thousand  dollar  limit  applied  to 
causes  removed  on  the  ground  of  prejudice  or  local  influence, 
held  that  it  was  the  intention  of  Congress  to  limit  these  caus- 
es, also,  to  those  of  which  the  court  would  have  had  original 
jurisdiction.  The  court  construed  the  first  part  of  the  sen- 
tence, "where  a  suit  is  now  pending"  to  be  equivalent  to  the 
words  "and  when  in  any  suit  mentioned  in  this  section."  This 
does  not  impress  the  author  as  a  satisfactory  construction  of 
the  statute.  If  Congress  used  the  words  "in  any  suit  men- 
tioned in  this  section"  in  one  sentence,  and  the  words  "where 
a  suit  is  now  pending"  in  another,  it  is  difficult  to  understand 
why  the  different  phraseology  was  employed,  especially  when 
the  two  first  sentences  of  the  same  act  are  taken  into  con- 
sideration. There  are  many  reasons  of  policy  for  assuming 
that  Congress  intended  to  be  more  liberal  in  causes  removed 
on  the  ground  of  prejudice  or  local  influence.  The  principle  on 
which  the  right  of  removal  is  given  at  all  is  the  theory  that 
there  may  be  injustice.  In  all  but  this  case,  however,  the 
removal  does  not  depend  upon  proof  of  this  fact,  but  is  theo- 
retical only.  Here  Congress  was  dealing  not  with  a  mere  theo- 
retical prejudice,  but  an  actual  one,  required  to  be  shown  by 
proof,  and  to  fix  a  monetary  limit  in  such  case  is  to  leave  un- 

4»  137  U.  S.  451,  11  Sup.  Ct.  141,  34  L.  Ed.  738. 


§  122)       PREJUDICE  OR  LOCAL  INFLUENCE.  311 

protected  a  nonresident  in  a  case  where  he  most  needs  pro- 
tection. The  small  case  is  just  as  important  to  the  poor  liti- 
gant in  those  cases  as  the  large  case  to  the  rich  litigant. 

The  Parties. 

The  controversy  removable  under  the  language  of  the  stat- 
ute is  "a  controversy  between  a  citizen  of  the  state  in  which  the 
suit  is  brought  and  a  citizen  of  another  state."  Under  this 
language  controversies  between  citizens  and  aliens  are  not  re- 
movable on  this  ground.60 

In  reference  to  the  parties  plaintiff,  it  is  well  settled  that 
the  word  is  used  collectively,  and  that,  under  the  principles 
established  in  other  cases  of  jurisdiction,  the  plaintiffs,  where 
there  are  more  than  one,  must  be  citizens  of  the  state  where 
the  suit  is  brought.61 

Whether  all  the  plaintiffs  and  all  the  defendants  must  be 
different  in  citizenship  is  a  question  on  which  there  is  a  vio- 
lent conflict  of  authority.  Under  the  removal  acts  previous 
to  the  present,  this  was  necessary.62 

But  the  language  of  the  present  section  is  that  "any  de- 
fendant" may  remove  the  case.  Influenced  by  this  language, 
there  is  a  strong  line  of  authorities  to  the  effect  that  any  de- 
fendant who  is  a  citizen  of  another  state  from  that  in  which 
the  suit  is  brought  can  remove  it,  even  though  there  are  other 
defendants  whose  citizenship  is  the  same  as  that  of  the  plain- 
tiff.5* 

On  the  other  hand,  there  are  authorities  which  hold  that 
the  controversy  itself  must  be  one  in  which  all  the  plaintiffs 
are  of  a  different  citizenship  from  all  of  the  defendants,  and 
that,  if  the  controversy  is  of  that  character,  then  any  nonresi- 
dent defendant  may  remove.64 

bo  Grand  Trunk  R.  Co.  v.  Twitchell,  59  Fed.  727,  8  C.  C.  A.  237. 
6i  Gann  v.  Northeastern  R.  Co.  (C.  C.)  57  Fed.  417. 

62  Rosenthal  v.  Coates,  148  TJ.  S.  142,  13  Sup.  Ct.  576,  37  L.  Ed.  399. 

63  Montgomery  County  v.  Cochran  (C.  C.)  116  Fed.  985;  Jackson 
&  Sharp  Co.  v.  Pearson  (C.  C.)  60  Fed.  113;  Bonner  v.  Meikle  (C.  C.) 
77  Fed.  485. 

64  Campbell  v.  Milliken  (C.  C.)  119  Fed.  982. 


312  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

This  question  has  not  been  directly  settled  by  the  Supreme 
Court.  If,  however,  the  principles  laid  down  in  Ex  parte 
Pennsylvania  Co.65  are  to  be  followed,  and  the  sentence  con- 
ferring jurisdiction  to  remove  on  the  ground  of  prejudice  or 
local  influence  is  subject  to  the  qualification  that  it  must  be 
such  a  suit  as  was  originally  cognizable  in  the  court,  it  is  diffi- 
cult to  see  how  the  Supreme  Court  can  avoid  holding,  when 
the  question  is  presented  to  it,  that  this  principle  regulates  not 
merely  the  question  of  jurisdiction  on  the  ground  of  amount 
involved,  but  also  the  question  as  to  parties;  and  certainly 
it  is  the  law,  as  to  parties  where  the  jurisdiction  is  governed 
by  the  test  of  jurisdiction  over  an  original  suit,  that  all  the 
parties  on  each  side  must  be  different.  The  decision  seems  to 
the  author  to  be  conclusive  of  the  question,  and  that  all  the 
parties  plaintiff  and  all  the  parties  defendant  to  the  controversy 
must  be  citizens  of  different  states.  There  are  many  cases 
which  would  come  within  the  purview  of  this  sentence  of  the 
original  act  under  this  construction — as,  for  instance,  suits  by 
a  citizen  of  Virginia  in  Virginia  against  a  citizen  of  Maryland 
and  a  citizen  of  West  Virginia. 
Conditions  on  Which  Removal  is  Allowed — Procedure. 

The  statute  gives  the  right  of  removal  "when  it  shall  be 
made  to  appear  to  the  circuit  court  that  from  prejudice  or 
local  influence  he  will  not  be  able  to  obtain  justice  in  the  state 
court  or  in  any  other  state  court  to  which  he  is  entitled  to  re- 
move the  case." 

There  is  nothing  in  the  statute  to  show  how  this  must  be 
made  to  appear.  The  better  authority  is  that  a  petition  should 
be  filed  in  the  federal  court  alleging  not  merely  the  petitioner's 
belief  or  the  bare  statement  of  prejudice  or  local  influence, 
but  setting  out  such  facts  as  would  show  it.59 

It  then  becomes  a  question  for  the  circuit  court  whether 
to  require  proof,  and  what  kind  of  proof  should  be  required. 

55  137  U.  S.  451,  11  Sup.  Ct.  141,  34  L.  Ed.  738. 
5  6  Schwenk  v.  Strang,  59  Fed.  209,  8  C.  C.  A.  92;   Collins  v.  Camp 
bell  (C.  C.)  62  Fed.  850. 


§  122)  PREJUDICE    OR   LOCAL   INFLUENCE.  313 

The  court  must  be  not  morally,  but  legally,  satisfied  of  the  ex- 
istence of  such  prejudice  or  local  influence;  and  it  may,  in  its 
discretion,  allow  proof  of  such  fact  by  affidavit.87 

On  this  petition  in  the  federal  court  an  order  is  obtained  to 
remove  the  case,  which  order  should  be  filed  in  the  state  court.58 

Then,  if  the  plaintiff  desires  to  contest  the  question  of 
prejudice  or  local  influence,  he  can  do  so  by  a  motion  to  remand 
to  the  state  court,  on  which  the  circuit  court  will  hear  such 
evidence  as  it  may  think  material.69 

The  present  statute  differs  from  the  old  in  requiring  proof 
not  merely  that  the  defendant  cannot  obtain  justice  in  the 
state  where  the  suit  is  pending,  but  in  any  other  state  court  to 
which  he  has  the  right  to  remove  it.  This  qualifying  clause, 
however,  only  applies  where  the  plaintiff  has  the  right  to  such 
change  of  venue  in  the  state  court,  not  where  it  is  discretionary 
with  the  state  court  whether  to  allow  the  change  of  venue  or 
not.80 

The  statute  seems  to  draw  a  distinction  between  prejudice 
and  local  influence,  and  to  allow  removal  for  either  of  these 
two  causes.81 

It  does  not  mean  that  the  petitioner  must  prove,  as  an  actual 
fact,  that  he  cannot  obtain  justice.  Such  a  requirement  would 
practically  make  the  law  a  dead  letter.  He  need  only  prove  the 
existence  of  such  prejudice  or  local  influence,  not  that  the 
court  or  jury  was  actually  affected  by  it82 

bt  City  of  Detroit  v.  Railroad  Co.  (C.  C.)  54  Fed.  1;  Ex  parte 
Pennsylvania  Co.,  137  U.  S.  451,  11  Sup.  Ct.  141,  34  L.  Ed.  738. 

68  Pennsylvania  Co.  v.  Bender,  148  U.  S.  255,  13  Sup.  Ct.  591,  37 
L.  Ed.  441. 

69  Dennison  v.  Brown  (C.  C.)  38  Fed.  535;  Amy  v.  Manning  (C.  C.) 
38  Fed.  868. 

eo  Robison  v.  Hardy  (C.  C.)  38  Fed.  49 ;  Rike  v.  Floyd  (C.  C.)  42 
Fed.  247;  Smith  v.  Lumber  Co.  (C.  C.)  46  Fed.  819;  Crosby  Lumber 
Co.  v.  Smith,  51  Fed.  63,  2  C.  C.  A.  97;  City  of  Tacoma  v.  Wright  (C. 
C.)  84  Fed.  836. 

«i  Neale  v.  Foster  (C.  C.)  31  Fed.  53. 

«2  City  of  Tacoma  v.  Wright  (C.  C.)  84  Fed.  836. 


314  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  14 

Proof  that  a  decision  in  favor  of  the  petitioner  would  affect 
the  judge's  chances  of  re-election  has  been  held  sufficient,  and 
it  applies  whether  the  case  is  triable  by  a  judge  or  a  jury.63 

The  existence  of  such  prejudice  or  local  influence  is  enough 
to  justify  the  removal,  whether  such  feeling  was,  as  a  matter 
of  fact,  justified,  under  the  circumstances,  or  not.6* 


REMOVAL  BECAUSE  OF  STATE  DENIAL  OF  EQUAL 
CIVIL  RIGHTS. 

123.    The  denial  of  civil  rights  by  state  legislative  authority 
gives  the  right  of  removal  to  the  party  so  injured. 

Section  641  of  the  Revised  Statutes65  provides  as  follows: 
"When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  state  court,  for  any  cause  whatsoever,  against  any  person 
who  is  denied  or  cannot  enforce  in  the  judicial  tribunals  of 
the  state,  or  in  the  part  of  the  state  where  such  suit  or  prose- 
cution is  pending,  any  right  secured  to  him  by  any  law  pro- 
viding for  the  equal  civil  rights  of  citizens  of  the  United  States, 
or  of  all  persons  within  the  jurisdiction  of  the  United  States, 
or  against  any  officer,  civil  or  military,  or  other  person,  for  any 
arrest  or  imprisonment  or  other  trespasses  or  wrongs,  made 
or  committed  by  virtue  of  or  under  color  of  authority  derived 
from  any  law  providing  for  equal  rights  as  aforesaid,  or  for 
refusing  to  do  any  act  on  the  ground  that  it  would  be  incon- 
sistent with  such  law,  such  suit  or  prosecution  may,  upon  the 
petition  of  such  defendant,  filed  in  said  state  court  at  any  time 
before  the  trial  or  final  hearing  of  the  cause,  stating  the  facts 
and  verified  by  oath,  be  removed,  for  trial,  into  the  next  circuit 
court  to  be  held  in  the  district  where  it  is  pending     *     *     *." 

The  primary  object  of  this  provision  was  the  protection  of 

«s  City  of  Detroit  v.  Railroad  Co.  (C.  C.)  54  Fed.  1;   Montgomery 
County  v.  Cochran  (C.  C.)  116  Fed.  085. 
64  Bartlett  v.  Gates  (C.  C.)  117  Fed.  362. 
66  U.  S.  Comp.  St.  1901,  p.  520. 


§  123)  STATE   DENIAL   OF   EQUAL   CIVIL    RIGHTS.  315 

the  colored  race  in  the  civil  rights  conferred  upon  them  as  a 
consequence  of  the  Civil  War.  In  its  language,  however,  it 
is  ample  to  cover  any  deprivation  of  equal  civil  rights,  and  is 
by  no  means  limited  to  the  colored  race.  The  main  rights 
which  it  is  intended  to  cover,  however,  are  those  rights  con- 
ferred by  the  fourteenth  amendment,  and  the  acts  of  Congress 
passed  in  pursuance  thereof.  The  right  to  authorize  removal 
from  a  state  court  by  virtue  of  this  statute  is  within  the  consti- 
tutional power  of  Congress.68 

The  essential  principle  to  bear  in  mind  under  this  section 
is  that  it  alludes  to  state  legislation,  not  to  the  mere  practice 
or  administration  by  state  officers  of  state  laws  which  show  no 
intent  to  discriminate  upon  their  face.  This  has  been  repeat- 
edly decided  by  the  Supreme  Court. 

Strauder  v.  West  Virginia 6T  was  a  criminal  prosecution 
against  a  colored  man,  removed  by  him  under  this  act  because 
the  West  Virginia  statute  provided  upon  its  face  that  only  white 
persons  should  be  summoned  as  jurors.  The  court  upheld 
the  right  of  removal. 

On  the  other  hand,  Virginia  v.  Rives  68  was  a  prosecution 
in  a  Virginia  state  court  against  a  negro  for  murder.  The 
Virginia  laws  regulating  the  summoning  of  jurors  did  not  con- 
tain any  provision  limiting  them  to  the  white  race,  but  it  was 
charged  that  the  uniform  practice  of  the  state  officers  was  to 
summon  only  white  men  upon  the  jury.  The  Supreme  Court 
denied  the  right  of  removal  in  such  case,  because  the  discrimina- 
tion was  not  by  the  state  in  its  legislation,  but  by  the  officers  of 
the  state  in  their  practice  under  it. 

If  the  state  legislation  charged  to  bring  about  the  discrimina- 
tion is  in  form  a  dead  letter,  then  the  right  of  removal  does 
not  exist.  In  Neal  v.  Delaware  69  the  Delaware  Constitution 
of  1831,  limiting  the  summoning  of  jurors  to  white  persons, 

so  Strauder  v.  West  Virginia,  100  U.  S.  303,  25  L.  Ed.  '664. 
67  100  U.  S.  303,  25  L.  Ed.  664. 
es  100  U.  S.  313,  25  L.  Ed.  667. 
69  103  U.  S.  370,  26  L.  Ed.  567. 


316  CIRCUIT  COURT — JURISDICTION  BY   REMOVAL.      (Ch.  14 

was  still  in  force,  but  the  Delaware  courts  had  held  that  the 
amendments  to  the  federal  Constitution  adopted  after  the  war 
practically  amended  their  state  Constitution,  also,  although 
there  had  never  been  a  state  convention  formally  amending  it. 
The  Supreme  Court  held  in  such  case  that  the  right  of  removal 
did  not  exist. 

In  Bush  v.  Kentucky  70  the  state  act  which  attempted  to 
discriminate  in  the  summoning  of  jurors  had  been  held  by  such 
court  to  be  unconstitutional,  but  had  never  been  formally  re- 
pealed. The  Supreme  Court  held  that  a  petition  to  remove  as 
to  acts  after  the  decision  of  the  state  supreme  court  holding  the 
law  invalid  could  not  be  sustained. 

Under  this  principle  that  the  right  is  given  only  against  state 
legislation,  and  not  against  the  mere  administration  of  the  state 
law,  there  is  no  ground  of  removal  under  this  act  from  the 
fact,  even  if  proved,  that  there  exists  a  personal  or  class 
prejudice  against  the  obnoxious  race.  Such  a  case  is  not 
provided  for  where  the  parties  are  citizens  of  the  same  state.71 

The  fact  that  the  state  is  suing  in  its  own  courts  does 
not  create  any  such  inequality  or  denial  of  equal  protection  of 
its  laws  as  to  authorize  the  right  of  removal  under  this  act.72 

The  case  of  People  of  New  York  v.  Bennett73  reviews  the 
decisions  on  this  subject.  It  held  that  the  New  York  Statute 
of  1895  against  bookmaking  and  pool  selling  in  connection  with 
horse  racing  did  not  constitute  a  denial  of  the  equal  protection 
of  the  laws,  from  the  fact  that  it  made  things  offenses  if 
committed  at  one  place,  when  they  would  not  be  if  committed 
at  another. 

to  107  U.  S.  110,  1  Sup.  Ct.  625,  27  L.  Ed.  354. 

7i  Gibson  v.  Mississippi,  162  U.  S.  565,  16  Sup.  Ct.  904,  40  L.  Ed. 
1075;  Texas  v.  Gaines,  Fed.  Cas.  No.  13,847. 
72  Alabama  v.  Wolff e  (O.  C.)  18  Fed.  836. 
ts  (C.  C.)  113  Fed.  515. 


§  124)      ENFORCEMENT    OF   INTERNAL   REVENUE    LAWS.  317 


REMOVAL    OF   SUITS    AGAINST    OFFICERS    OR   PERSONS 
ENFORCING  THE  INTERNAL  REVENUE  LAWS. 

124.  Suits  in  state  courts,  whether  civil  or  criminal,  against 
officers  or  others  acting  under  federal  authority  in  en- 
forcing the  revenue  laws,  are  removable  by  them. 

The  first  part  of  section  643  of  the  Revised  Statutes  74  pro- 
vides as  follows:  "When  any  civil  suit  or  criminal  prosecu- 
tion is  commenced  in  any  court  of  a  state  against  any  officer 
appointed  under  or  acting  by  authority  of  any  revenue  law  of 
the  United  States  now  or  hereafter  enacted,  or  against  any  per- 
son acting  under  or  by  authority  of  any  such  officer,  on  account 
of  any  act  done  under  color  of  his  office  or  of  any  such  law,  or 
on  account  of  any  right,  title,  or  authority  claimed  by  such 
officer  or  other  person  under  any  such  law ;  or  is  commenced 
against  any  person  holding  property  or  estate  by  title  derived 
from  any  such  officer,  and  affects  the  validity  of  any  such  reve- 
nue law;  the  said  suit  or  prosecution  may,  at  any  time  before 
the  trial  or  final  hearing  thereof,  be  removed  for  trial  into  the 
circuit  court  next  to  be  holden  in  the  district  where  the  same 
is  pending,  upon  the  petition  of  such  defendant  to  said  circuit 
court." 

The  object  of  this  statute  is  to  protect  federal  officers  in 
performing  their  duties  under  the  revenue  laws  against  suits 
in  state  courts,  civil  or  criminal,  on  account  of  acts  done  while 
acting  in  that  capacity.     This  provision  is  constitutional.75 

It  applies  to  suits  commenced  in  a  state  court.  When  the 
proceeding  is  a  criminal  proceeding  in  which  an  indictment  is 
necessary,  it  is  not  supposed  to  be  commenced  until  an  indict- 
ment has  been  found  by  the  grand  jury  of  the  state.  A  pre- 
liminary examination  before  a  magistrate  under  such  circum- 
stances cannot  be  removed,  because  it  may  be  that,  when  sent 
on  to  the  grand  jury,  an  indictment  would  not  be  found,  and 

7*  U.  S.  Comp.  St.  1901,  p.  521. 

75  Tennessee  v.  Davis,  100  U.  S.  257,  25  L.  Ed.  648. 


31S  CIRCUIT  COURT JURISDICTION  BY   REMOVAL.       (Cll.  14 

it  could  not  have  been  the  intent  of  Congress  to  place  on  the 
federal  grand  juries  the  burden  of  finding  indictments  under 
state  laws.78 

There  are,  however,  many  cases  which  can  be  commenced 
without  any  indictment  at  all.  For  instance,  under  the  crim- 
inal laws  of  Virginia,  magistrates  have  original  jurisdiction 
of  a  large  class  of  misdemeanors,  and  try  them  as  a  court  of 
original  jurisdiction,  not  as  a  mere  examining  court.  A  prose- 
cution of  this  sort  against  a  federal  officer  for  acts  contemplated 
by  the  section  above  quoted  is  removable,  though  the  magis- 
trate's court  may  not  be  a  court  of  record.77 

The  prosecutions  removable  from  the  state  court  are  for  acts 
as  an  officer  of  the  United  States  in  administering  the  revenue 
laws.78 

It  includes  not  only  regular  officers  like  marshals  or  deputy 
marshals,  but  soldiers  of  the  army  detailed  to  assist,  or  men 
summoned  as  a  posse  for  the  same  purpose.79 

It  includes  not  only  criminal  prosecutions,  but  civil  suits 
against  federal  officers  to  hold  them  liable  for  their  acts  as 
such  in  connection  with  the  revenue  laws.  For  instance,  a 
suit  is  removable  from  the  state  court  which  sought  to  recover 
back  taxes  from  a  collector  of  internal  revenue  on  the  ground 
that  they  had  been  illegally  assessed  by  him.80 

It  includes  an  action  by  a  railroad  company  against  a  col- 
lector of  customs  for  freight  collected  by  his  deputy  from  the 
consignees  of  goods  passing  through  the  customhouse,  and  in 
such  case  the  federal  court  has  jurisdiction  to  decide  whether 
the  collector  is  liable  for  the  acts  of  his  deputy  under  such  cir- 
cumstances.81 

T6  Virginia  v.  Paul,  148  U.  S.  107,  13  Sup.  Ct.  536,  37  L.  Ed.  386. 

7T  Virginia  v.  Bingham  (C.  C.)  88  Fed.  561. 

T8  Tennessee  v.  Davis,  100  U.  S.  257,  25  L.  Ed.  648. 

7»  Virginia  v.  De  Hart  (C.  C.)  119  Fed.  626;  Davis  v.  South  Caro- 
lina, 107  U.  S.  597,  2  Sup.  Ct.  636,  27  L.  Ed.  574. 

so  Venable  v.  Richards,  105  TJ.  S.  636,  26  L.  Ed.  1196. 

»i  Cleveland,  C,  C.  &  I.  R.  Co.  v.  McClung,  119  U.  S.  454,  7  Sup. 
Ct.  262,  30  L.  Ed.  465. 


§  121)       ENFORCEMENT   OF   INTERNAL   REVENUE   LAWS.  319 

The  better  opinion  is  that  suits  in  connection  with  those 
portions  of  the  postal  laws  which  look  to  the  raising  of  revenue 
are  removable.  This  would  not  include  suits  in  connection 
with  the  money-order  system,  as  that  was  not  intended  by  Con- 
gress to  be  a  means  of  raising  revenue,  but  as  a  mere  conven- 
ience.82 

The  suits  in  connection  with  those  parts  of  the  postal  laws 
relating  to  the  raising  of  revenue  under  them  are  removable.83 

And  a  suit  in  a  state  court  against  contractors  charged  with 
the  duty  of  building  a  government  post  office,  and  in  connec- 
tion with  other  acts  as  such  contractors,  is  removable.84 

The  statute,  however,  does  not  authorize  the  removal  of  a 
suit  against  a  United  States  commissioner  to  recover  fees 
illegally  exacted  by  him.85 

Nor  prosecutions  in  a  state  court  for  violation  of  the  state 
liquor  laws,  even  though  the  accused  may  hold  a  federal  liquor 
license.  A  license  of  this  sort  is  not  a  license  to  violate  state 
laws.86 

The  removal  under  this  act  is  effectual .  when  the  federal 
court,  by  the  process  more  fully  set  out  in  the  statute,  notifies 
the  state  court  of  the  fact  of  removal.87 

The  effect  of  removing  such  a  case  is  rather  anomalous. 
The  federal  court  then  tries  the  action  as  a  prosecution  under 
the  laws  of  the  state,  and  therefore  it  follows  the  construction 
of  the  state  law  by  the  state  court.  If  it  is  a  prosecution  in  a 
state  court  for  murder,  then  the  question  what  constitutes  mur- 
der or  homicide  is  to  be  settled  by  the  law  of  the  state  against 
whose  sovereignty  the  act,  if  an  offense  at  all,  is  an  offense.88 

sa  U.  S.  v.  Norton,  91  U.  S.  566,  23  L.  Ed.  454. 
83  Warner  v.  Fowler,  Fed.  Cas.  No.  17,182;    U.  S.  v.  Bromley,  12 
How.  8S,  13  L.  Ed.  905. 
»«  Ward  v.  Construction  Co.,  99  Fed.  598,  39  C.  G.  A.  669. 
so  Benchley  v.  Gilbert,  Fed.  Cas.  No.  1,291. 
se  Com.  v.  Casey,  12  Allen  (Mass.)  214. 

•t  Virginia  v.  Paul,  148  U.  S.  107,  13  Sup.  Ct.  536,  37  L.  Ed.  386. 
«8  North  Carolina  v.  Gosnell  (C.  C.)  74  Fed.  734. 


320  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  1* 

In  such  case  the  prosecution  in  the  federal  court  is  conducted 
by  the  state  prosecuting  officers,  and  the  federal  prosecuting 
officers,  if  they  take  part  at  all,  defend  the  accused,  as  he  is 
setting  up  a  defense  under  the  federal  law.88 

•»  Delaware  v.  Emerson  (C.  0.)  8  Fed.  411, 


§  125)         CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.  321 


CHAPTER  XV. 

THE  CIRCUIT  COURT  (Continued)— JURISDICTION  BY 
REMOVAL  (Continued). 

125.  Steps  to  Secure  and  Effect  Removal — In  General. 

126.  Form  of  Petition  in  General. 

127.  Place  to  File  Petition. 

128.  Proper  Averments  in  the  Petition. 

129.  The  Removal  Bond. 

130.  Time  of  Filing  Petition. 

STEPS  TO  SECURE  AND  EFFECT  REMOVAL— IN  GENERAL. 

125.  The  method  of  removing  a  cause  is  to  file  a  petition  in 
the  state  court  showing  on  its  face  a  removable  case, 
accompanied  by  a  proper  bond.  An  order  should  then 
be  obtained  from  the  state  court  accepting  the  bond. 
A  transcript  of  the  record  must  be  filed  afterwards  in 
the  federal  court.  The  refusal  of  the  state  court  to 
enter  such  order  does  not  defeat  the  right  of  removal. 

The  first  part  of  section  3  of  the  act  of  August  13,  1888, a 
provides  as  follows: 

"That  whenever  any  party  entitled  to  remove  any  suit  men- 
tioned in  the  next  preceding  section,  except  in  such  cases  as  are 
provided  for  in  the  last  clause  of  said  section,  may  desire  to  re- 
move such  suit  from  a  state  court  to  the  circuit  court  of  the 
United  States,  he  may  make  and  file  a  petition  in  such  suit  in 
such  state  court  at  the  time,  or  any  time  before  the  defendant 
is  required  by  the  laws  of  the  state  or  the  rule  of  the  state 
court  in  which  such  suit  is  brought  to  answer  or  plead  to  the 
declaration  or  complaint  of  the  plaintiff,  for  the  removal  of 
such  suit  into  the  circuit  court  to  be  held  in  the  district  where 
such  suit  is  pending,  and  shall  make  and  file  therewith  a  bond, 

i  U.  S.  Comp.  St.  1901,  p.  510. 
Hughes  Fed.  Jur. — 21 


322  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  15 

with  good  and  sufficient  surety,  for  his  or  their  entering  in  such 
circuit  court,  on  the  first  day  of  its  then  next  session,  a  copy 
of  the  record  in  such  suit,  and  for  paying  all  costs  that  may  be 
awarded  by  the  said  circuit  court  if  said  court  shall  hold  that 
such  suit  was  wrongfully  or  improperly  removed  thereto,  and 
also  for  their  appearing  and  entering  special  bail  in  such  suit 
if  special  bail  was  originally  requisite  therein.  It  shall  then 
be  the  duty  of  the  state  court  to  accept  said  petition  and  bond, 
and  proceed  no  further  in  such  suit;  and  the  said  copy  being 
entered  as  aforesaid  in  said  circuit  court  of  the  United  States, 
the  cause  shall  then  proceed  in  the  same  manner  as  if  it  had  been 
originally  commenced  in  the  said  circuit  court." 

Under  this  provision  the  only  method  of  removal  is  by  pe- 
tition, and  the  necessity  for  filing  a  petition  is  jurisdictional. 
The  case  cannot  be  removed  by  consent,  nor  can  a  petition  be 
waived  by  consent.2 

FORM  OF  FETTTION  IN  GENERAL. 

126.  The  petition  must  allege  all  necessary  jurisdictional 
facts,  and  such  facts  must  be  alleged  as  existing  both 
at  the  date  of  commencing  the  suit  in  the  state  court 
and  at  the  date  of  filing  the  petition.  A  petition  which 
does  not  make  this  allegation  as  to  both  these  dates  is 
defective.3 
There  is  some  conflict  of  authority  on  the  question  whether 
the  petition  must  aver  the  necessary  facts  positively, 
or  whether  an  averment  on  information  and  belief  is 
sufficient. 

In  Wolff  v.  Archibald  *  it  was  decided  that  the  averment  of 
jurisdictional  facts  must  be  positive.  On  the  other  hand,  in 
Carlisle  v.  Sunset  Telephone  &  Telegraph  Co.,5  it  was  held 

2  Hegler  v.  Faulkner,  127  U.  S.  482,  8  Sup.  Ct.  1203,  32  L.  Ed.  210; 
First  Nat.  Bank  v.  Prager,  91  Fed.  689,  34  C.  C.  A.  51. 

s  Mattingly  v.  Railroad  Co.,  158  U.  S.  53,  15  Sup.  Ct.  725,  39  L.  Ed. 
894;   Dalton  v.  Insurance  Co.  (C.  C.)  118  Fed.  936. 

*  (C.  C.)  14  Fed.  369.  «  (C.  C.)  116  Fed.  896. 


§  126)  TORM   OF  PETITION   IN   GENERAL.  323 

that  as  the  petitioner  could  not,  in  the  nature  of  things,  know 
the  necessary  facts  positively  of  his  own  knowledge,  an  aver- 
ment on  information  and  belief  was  sufficient.  This  latter 
view  seems  to  the  author  the  more  reasonable  and  correct 
one. 

The  petition  need  not  be  under  oath  except  in  those  cases 
where  the  statute  expressly  requires  it.  The  cases  in  which 
it  does  require  it  are  when  the  ground  of  removal  is  prejudice 
or  local  influence,  in  which  there  must,  under  the  express  re- 
quirements of  the  statute,  be  some  proof  to  the  court  of  the 
existence  of  the  necessary  facts,  and  an  affidavit  to  the  petition 
is  one  way  of  showing  this ;  and  an  affidavit  is  necessary  in 
cases  removed  on  the  ground  of  the  denial  of  equal  civil  rights, 
and  in  rases  nf  the  removal  of  suits  and  prosecutions  against 
revenue  officers. 

Signature  by  Counsel. 

The  petition  need  not  be  signed  by  the  petitioner  himself, 
but  may  be  signed  by  his  counsel.6 

How  far  Record  may  Supplement  Defective  Petition. 

It  has  been  stated  above  that  the  petition  must  show  all  the 
necessary  jurisdictional  facts.  As  a  matter  of  good  pleading, 
this  should  always  be  done,  independent  of  the  remainder  of 
the  record,  as  the  court  should  be  entitled  to  have  the  peti- 
tioner's case  clearly,  logically,  and  consecutively  presented 
in  a  single  paper  without  being  put  to  the  trouble  of  searching 
through  the  entire  record.  At  the  same  time  it  is  the  result  of 
the  decisions  that,  though  the  petition  itself  may  be  defective 
even  in  jurisdictional  facts,  yet  if  those  facts  appear  from  other 
parts  of  the  record  the  case  is  removable.  This  important 
qualification  must  be  borne  in  mind  in  the  future  discussion  as 
to  the  necessary  averments  to  insert  in  a  petition. 

In  Reed  v.  Hardeman  Co.7  the  petition  averred  that  the 

«  Dennis  v.  Alachua  Co.,  Fed.  Cas.  No.  3,791;  Removal  Cases,  100 
U.  S.  457,  25  L.  Ed.  503. 

7  77  Tex.  165,  13  S.  W.  1024. 


324  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  15 

amount  involved  was  over  $500,  but  the  declaration  showed 
that  it  was  over  $25,000.  The  court  held  that  the  case  was  re- 
movable under  the  act  of  August  13,  1888,  though  the  aver- 
ment of  the  petition  itself  did  not  show  the  necessary  jurisdic- 
tional amount. 

In  National  S.  S.  Co.  v.  Tugman  8  a  petition  was  defective 
in  not  showing  the  alienage  of  one  of  the  parties;  but  other 
parts  of  the  record  showed  it,  and  the  court  held  that  the  case 
was  removable. 

How  far  Petition  Amendable. 

This  must  be  considered,  first,  as  to  the  power  of  the  state 
court  to  allow  an  amendment  before  the  order  of  removal  is 
entered,  and,  second,  as  to  the  power  of  the  federal  court  after 
the  transcript  has  been  filed  in  the  latter  court. 

As  to  the  state  courts,  an  amendment  can  certainly  be  allowed 
at  any  time  before  the  lapse  of  the  time  prescribed  by  law  within 
which  the  petition  must  be  filed.9 

It  has  also  been  held  that  the  state  court  can  allow  the 
amendment  of  a  petition  even  after  the  time  within  which  the 
petition  must  be  filed.10 

On  principle,  there  is  no  reason  why  a  state  court  cannot 
allow  an  amendment  at  any  time  before  it  has  entered  the 
order  of  removal.  If  the  case  is  a  removable  case,  and  the 
defect  is  merely  in  stating  such  facts,  the  party  ought  not  to 
be  deprived  of  his  statutory  right  to  remove  by  the  omission 
of  a  statement  of  fact  which  existed  at  the  time  the  petition  was 
filed,  although  not  set  out  in  the  petition. 

As  to  the  right  to  amend  in  the  federal  courts,  the  decisions 
of  the  lower  courts  to  the  effect  that  such  right  cannot  be  al- 
lowed as  to  the  allegation  of  jurisdictional  facts  are  numerous, 

s  106  U.  S.  118,  1  Sup.  Ct.  58,  27  L.  Ed.  87.  See,  also,  Denny  v. 
Pironi,  141  U.  S.  121,  11  Sup.  Ct.  966,  35  L.  Ed.  657;  Powers  v.  Rail- 
way Co.,  169  U.  S.  92,  101,  18  Sup.  Ct.  264,  42  L.  Ed.  673. 

a  Hardwick  v.  Kean,  95  Ky.  563,  26  S.  W.  589;  Security  Co.  v. 
Pratt,  65  Conn.  161,  32  Atl.  396. 

io  Roberts  v.  Navigation  Co.  (C.  C.)  104  Fed.  577. 


§  120)  FOItM   OF   PETITION   IN    GENERAL.  325 

and  quite  recent.  For  instance,  even  as  late  as  the  case  of 
Dalton  v.  Germania  Ins.  Co.,11  where  the  only  defect  was  the 
failure  to  allege  the  conditions  as  to  citizenship  as  of  the  time 
of  beginning  the  suit,  as  well  as  of  the  time  of  the  petition  for 
removal,  it  was  held  that  such  an  amendment  could  not  be 
made. 

Decisions  to  this  effect  are  too  numerous  to  cite,  but  they 
may  be  considered  as  overruled  by  the  recent  case  of  Kinney 
v.  Columbia  Savings  &  Loan  Ass'n,12  decided  November  9, 
1903.  In  that  case  there  was  an  allegation  that  it  was  a  con- 
troversy between  citizens  of  different  states,  following  the  lan- 
guage of  the  statute,  but  the  allegation  omitted  to  state  the  ex- 
istence of  the  necessary  facts  both  at  the  time  of  commencing 
the  suit  and  at  the  time  of  the  petition  for  removal.  The  state 
court  had  removed  the  case  without  objection,  and  the  circuit 
court  had  allowed  an  amendment.  The  Supreme  Court,  re- 
viewing the  previous  decisions,  held  that  such  an  amendment 
could  be  allowed  under  those  circumstances,  and  that  the 
amendment  could  insert  jurisdictional  facts  where  they  actually 
existed. 

On  principle,  the  solution  of  this  question  ought  to  be  that  if 
the  petition  is  defective,  and  if  the  state  court  (which  has  the 
right  under  the  decisions  to  say  whether  the  petition  does  make 
out  a  removable  case)  refuses  to  remove  it,  then,  as  such  refusal 
on  the  part  of  the  state  court  is  right,  the  case  never  legally 
reaches  the  circuit  court.  Therefore,  the  proper  course  would 
be  to  amend  in  the  state  court  under  such  circumstances.  If, 
however,  no  amendment  is  made  in  the  state  court,  or  applica- 
tion therefor  is  refused,  then  the  circuit  court,  never  having 
obtained  legal  jurisdiction  of  the  case,  has  no  jurisdiction  to  al- 
low an  amendment ;  but,  if  the  state  court  actually  orders  the 
removal,  then,  the  case  having  reached  the  circuit  court  right- 
fully, the  latter  court  ought  to  have  the  right  to  allow  an 
amendment  as  to  jurisdictional  matters. 

ii  (C.  C.)  118  Fed.  936. 

12  KINNEY  v.  ASSOCIATION,  191  U.  S.  78,  24  Sup.  Ct.  30,  48  L. 
Ed.  103. 


326  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  15 


PLACE  TO  FILE  PETITION. 

127.  Under  the  express  provisions  of  the  statute  the  petition 

for  removal  ought  to  he  filed  in  the  state  court  in  the 
following  cases: 

(a)  'When  the  ground  is  the  existence  of  a  federal  question. 

(b)  When    the    application    is    to    remove    the    entire     suit 

under  section  2  of  the  act  of  August  13,  1888,  which 
includes: 

(1)  Suits  by  the  United  States. 

(2)  Suits   depending   on   the   citizenship   of   the    parties; 

and 

(3)  Suits    depending    on    the    existence    of    claims    nnder 

conflicting  land  grants  of  different   states. 

(c)  Where   the  ground   of  removal  is  that  a  separable   con- 

troversy is  involved. 

(d)  Where   the   ground   of   removal   is    denial    of    equal   civil 

rights. 
On  the   other  hand,  the   petition  for  removal  must  be  filed 
in    the    United    States    circuit    court   when   the    ground 
is  the  existence  of  prejudice  or  local  influence,  or  when 
it  is  a  suit  or  prosecution  against  revenue  officers. 

PROPER  AVERMENTS  IN  THE  PETITION. 

128.  Any  petition  for  removal  under  any  one  of  the  various 

classes  of  removal  cases  must  show  in  its  averments 
all  the  necessary  facts  to  entitle  the  petitioner  to  a 
removal  on  the  particular  ground  relied  on. 

When  the  Ground  is  the  Existence  of  a  Federal  Question. 

In  order  to  ascertain  the  proper  allegations  in  such  a  petition, 
it  is  necessary  to  compare  the  first  section  of  the  act  of  Au- 
gust 13,  1888,  regulating  the  original  jurisdiction  of  the  court, 
with  the  second  section,  regulating  its  jurisdiction  by  removal. 
When  this  comparison  is  made,  it  will  be  seen  that  the  petition 
ought  to  show  the  character  of  the  suit,  so  as  to  show  that  it  is 
a  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which  the  court 
would  have  original  jurisdiction,  thus  excluding  proceedings 
by  mandamus  and   other  proceedings  which,   as   shown   in  a 


§  128)  PROPER   AVERMENTS   IN   THE    PETITION.  327 

previous  connection,  cannot  be  brought  originally  in  the  federal 
courts.  The  petition  then  ought  to  show  that  the  suit  arises 
under  the  "Constitution  and  laws  of  the  United  States,  or 
treaties  made  or  which  shall  be  made  under  their  authority." 
Prior  to  the  act  of  August  13,  1888,  it  was  essential  to  show 
this  by  the  petition,  at  least  in  those  cases  where  it  did  not  ap- 
pear on  the  plaintiff's  pleading,  for  under  the  prior  acts  a  suit 
could  be  removed,  as  involving  such  a  question,  where  the  ques- 
tion was  raised  for  the  first  time  by  the  defendant's  pleading ; 
but  it  has  been  seen  that  under  the  present  act  the  plaintiffs^ 
own  pleading  must  show  the  existence  of  a  federal  question) 
upon  its  face  before  the  case  is  removable  at  all.  Hence,  while 
it  is  better  pleading,  and  due  the  court,  to  state  not  merely  in 
general  terms  that  the  case  arises  under  the  Constitution  and 
laws  of  the  United  States,  or  treaties  made  or  which  shall  be 
made  under  their  authority,  but  also  to  state  exactly  what  the 
question  is  and  how  it  arises,  still  a  failure  to  do  this  would  not 
be  fatal,  because  it  would  necessarily  appear  on  the  plaintiff's 
own  pleading,  and  hence  would  come  under  the  principle  above 
described,  that  the  petition  may  be  supplemented  by  other  parts 
of  the  record. 

The  petition  should  conclude  with  the  prayer  for  removal,  andj 
have  the  bond  attached. 

Averments  Necessary  When  the  Application  is  to  Remove  the 
Entire  Controversy  on  the  Ground  of  Citizenship,  etc. 

In  this  class  of  cases  the  form  of  the  petition  is  necessarily 
more  important,  for  it  is  the  petition  which  shows  that  the 
case  is  a  removable  case,  and  not  the  other  parts  of  the  record. 
In  an  ordinary  case  in  a  state  court  it  is  no  part  of  any  system 
of  pleading  to  set  out  the  citizenship  of  the  parties.     Hence  tlie\ 
record  in  this  case  must  be  supplemented  by  proper  averments  \ 
in  the  petition  itself,  and  the  pleader  cannot  ordinarily  hope 
to  fall  back  upon  the  other  parts  of  the  record  to  help  him  outJ 
as  he  usually  can  when  a  federal  question  is  involved.  ^/ 

The  first  section  of  the  act  of  August  13,  1888,  regulating 
jurisdiction,  and  the  second  section,  regulating  removals,  must 


328  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  15 

be   read  together  in  order  to   see  the   necessary  averments. 
^Reading  them  together,  it  will  be  seen  that  the  petition  ought 
/to  show  the  character  of  the  suit,  whether  at  law  or  in  equity, 
/  and  that  it  is  one  of  which  the  circuit  court  would  have  original 
J   jurisdiction.     It  ought  to  show  the  amount  involved,  and  the 
citizenship  of  each  of  the  parties  at  the  time  of  the  commence- 
ment of  the  suit  and  at  the  time  of  filing  the  petition.     In  addi- 
tion, as  only  the  nonresident  defendant  can  remove,  it  ought 
to  show  the  residence  or  habitation  of  each  party,  both  plaintiff 
and  defendant;  and,  if  it  is  a  suit  by  the  assignee,  it  ought  to 
show  the  same  as  to  the  assignor.     But  where  these  facts  ap- 
pear in  other  parts  of  the  record,  in  such  case  an  omission  to 
,    allege  these  facts  would  be  supplemented  by  the  record.     But 
\  still  the  petition  ought  to  collate  all  these  facts  for  the  conven- 
*  ience  of  the  court. 

It  is  not  sufficient  to  allege  merely  that  the  plaintiffs  and 
defendants  are  citizens  of  different  states,  but  the  citizenship  of 
each  one  must  be  given.13 

Same — Corporations. 

These  are  the  general  principles  regulating  the  drafting  of 
the  petition.  There  are,  however,  many  instances  where  gen- 
eral allegations  are  tantamount  to  the  allegations  stated  to  be 
necessary  above.  Most  of  these  questions  arise  in  connection 
with  the  proper  averments  as  to  the  legal  status  of  corporations. 
The  general  principles  discussed  in  reference  to  the  proper  alle- 
gations in  original  suits  14  apply  to  such  circumstances. 

In  the  case  of  an  alien  corporation,  for  instance,  an  allega- 
tion that  the  corporation  is  organized  under  the  laws  of  a  cer- 
tain foreign  country  is,  in  law,  equivalent  to  the  allegation  that 
this  was  the  state  of  facts  both  at  the  commencement  of  the  suit 
and  the  filing  of  the  petition  for  removal,  for  it  speaks  of 'the 
date  of  creation.15 

is  Cameron  v.  Hodges,  127  U.  S.  322,  8  Sup.  Ct.  1154,  32  L.  Ed. 
132. 

14  Ante,  p.  234  et  seq. 

is  Roberts  v.  Navigation  Co.  (C.  C.)  104  Fed.  577;  Continental 
Wall-Paper  Co.  v.  Lewis  Voight  &  Sons  Co.  (C.  C.)  106  Fed.  550. 


§  128)  PROPER   AVERMENTS   IN    THE    PETITION.  329 

The  principle  that  a  corporation  must  not  be  alleged  to  be 
a  citizen,  and  that  such  an  allegation  is  meaningless,  applies 
as  well  to  removal  cases  as  to  original  cases.18 

An  allegation  that  the  corporation  is  organized  under  the 
laws  of  a  certain  state,  and  has  its  principal  office  at  a  certain 
place  in  said  state,  is  a  sufficient  allegation  both  of  citizenship 
and  residence,17  though,  for  safety's  sake,  an  allegation  that 
such  was  the  state  of  facts  both  at  the  commencement  of  the 
suit  and  the  filing  of  the  petition  would  be  a  wise  addition. 

In  some  cases  it  has  been  held  that,  in  making  the  proper  alle- 
gations as  to  a  corporation,  it  should  be  stated  not  only  that  it 
is  a  citizen  of  a  given  state,  with  its  principal  office  in  that  state, 
but  also  that  it  is  not  a  citizen  of  the  state  where  the  suit  is 
pending.  The  reason  given  for  this  decision  is  that  a  corpora- 
tion may  be  a  citizen  of  more  than  one  state,  and  that  this  possi- 
bility ought  to  be  excluded.18 

On  the  other  hand,  it  has  also  been  held  that  an  allegation 
that  it  is  a  corporation  of  a  certain  state,  with  its  principal  office 
in  that  state,  is  sufficient.19 

It  seems  to  the  author  that  this  latter  class  of  authorities  is  \ 
best  based  on  reason.  A  careful  study  of  the  Supreme  Court 
decisions  in  relation  to  corporations  holding  charters  or  per- 
missive legislation  from  more  than  one  state  will  show  that  a 
corporation  cannot  be  a  citizen  of  two  states.  On  the  contrary, 
those  cases  have  held  that  where  a  corporation  is  chartered  even 
simultaneously  by  two  states,  and  keeps  but  one  set  of  books, 
one  set  of  officers,  and  one  organization,  still,  in  contemplation 
of  law,  they  are  two  entirely  distinct  and  separate  corporations. 
Hence  an  averment  that  a  corporation  was  organized  under 
the  laws  of  a  certain  state,  with  its  principal  office  in  that  state, 
would  be  tantamount  to  the  averment  that  it  was  the  corpora- 

i«  Dinet  v.  Delavan  (C.  C.)  117  Fed.  978. 
it  Ante,  p.  216. 

i«  Overman  Wheel  Co.  v.  Manufacturing  Co.  (C.  C.)  46  Fed.  577. 
i»  Myers  v.  Murray,  Nelson  &  Co.  (C.  C.)  43  Fed.  695,  11  L.  R.  A. 
216;   Shattuck  v.  Insurance  Co.,  58  Fed.  609,  7  C.  C.  A.  386. 


330  CIRCUIT  COURT JURISDICTION  BY  REMOVAL.      (Ch.  15 

tion  which  was  bringing  the  suit,  and  this  ought  to  be  suffi- 
cient.20 If  this  were  not  true,  certainly  an  allegation  to  the 
above  effect  ought  to  be  sufficient  to  make  a  prima  facie  case, 
and  to  put  on  any  party  who  should  question  it  the  onus  of  de- 
nying it. 

Averment  of  Residence. 

As  to  a  corporation,  an  averment  that  it  is  organized  under 
the  laws  of  a  certain  state,  with  its  principal  office  in  that  state, 
is  equivalent  to  an  averment  of  residence  in  that  state.21 

In  reference  to  such  an  averment  as  among  individuals,  it 
was  held  in  Fife  v.  Whittell 22  that,  as  only  a  nonresident  de- 
fendant could  remove,  there  must  be  an  express  averment  in 
the  petition  that  the  defendant  is  a  nonresident,  even  though 
there  is  already  an  express  averment  that  the  defendant  is  a 
citizen  and  resident  of  a  certain  state,  different  from  the  one 
where  the  suit  was  instituted. 

On  the  other  hand,  in  Zebert  v.  Hunt 2S  it  was  held  that  an  al- 
legation of  citizenship  and  residence  in  another  state  was  suf- 
ficient to  show  nonresidence.  To  the  author  it  seems  that  it 
certainly  ought  to  be  sufficient.  If  a  suit  is  brought  in  the 
Eastern  District  of  Virginia,  and  the  petition  alleges  that  the 
defendant  is  a  citizen  and  resident  of  the  state  of  New  York, 
it  would  seem  to  be  hypercritical  in  the  extreme  to  require  him 
to  go  on  and  allege  further  that  he  was  not  a  resident  of  the 
state  of  Virginia.  Something,  at  least,  might  be  left  for  the 
court  to  presume. 

Allegations  Necessary  in  Removals  on  the  Ground  of  Sepa- 
rable Controversies. 
As  the  plaintiff's  own  petition  must  show  that  the  plaintiff's 
controversy  is  separable,  this  allegation  is  not  essential,  but 
should  be  inserted  for  the  reasons  given  in  previous  connections. 
Hence  the  petition  in  such  case  ought  to  show  the  character  of 

20  Nashua  &  L.  Corp.  v.  Corporation,  136  U.  S.  356,  10  Sup.  Ct. 
1004,  34  L.  Ed.  363. 
2i  Howard  v.  Gold  Reefs  (C.  C.)  102  Fed.  657. 
22  (C.  C.)  102  Fed.  537.  23  (C.  C.)  10S  Fed.  449. 


§  128)  PROPER   AVERMENTS   IN   THE    PETITION.  331 

suit,  the  amount,  the  citizenship  of  the  parties  to  the  contro- 
versy, alleged  in  accordance  with  the  rules  given  in  the  last 
connection,  and  sufficient  to  show  that  the  defendant  is  a  non- 
resident defendant.  Of  course,  as  in  all  other  cases,  there 
should  be  a  prayer  for  removal  and  a  proper  bond. 

Allegations  When  the  Ground  is  Prejudice  or  Local  Influence. 
This  petition,  as  shown  above,  goes  to  the  United  States  cir- 
cuit court.  As  there  is  no  record  in  that  court  to  help  out  the 
petition,  it  must  be  prepared  with  special  care.  It  must  show\ 
the  character  of  the  suit,  the  amount  involved,  the  citizenship 
and  residence  of  both  parties  as  detailed  above,  and  the  facts  I 
which  are  claimed  to  show  the  existence  of  prejudice  or  local/ 
influence.  A  mere  allegation  that  such  prejudice  or  local  in- 
fluence exists  would  not  be  sufficient,  but  the  petition  should  set 
out  wherein  the  prejudice  or  local  influence  is  supposed  to  exist. 
It  is  a  delicate  matter  for  a  judge  to  remove  a  suit  from  an- 
other court  on  such  a  ground,  and  the  petitioner  must  expect 
that  the  first  impulse  of  the  federal  judge  in  such  case  will  be  a 
negative,  and  must  make  his  strongest  allegations  to  meet 
it.  It  should  be  accompanied  by  affidavits  or  other  proof  suf- 
ficient to  make  such  a  case  appear  to  the  court. 

Removal  on  Ground  of  Denial  of  Civil  Rights. 

In  this  case  the  amount  and  citizenship  are  immaterial.  TheA 
petition  under  such  circumstances  should  show  the  character  1 
of  the  suit 'or  prosecution,  show  the  right  denied,  and  state  the  I 
facts  constituting  the  denial,  and  here  an  affidavit  is  necessary^/ 

Removal  on  the  Ground  of  Prosecution  of  Revenue  Officers. 

The  petition  in  this  case  must  be  filed  in  the  federal  court, 
and,  as  there  is  no  record  in  this  court  at  the  time  of  its  filing, 
it  must  necessarily  be  very  full.  It  must  show  the  nature  of 
the  suit  or  prosecution,  and  have  a  certificate  of  an  attorney  or 
counselor  who  appears  in  the  court  when  the  suit  or  prosecu- 
tion is  commenced,  or  in  the  United  States  court,  stating  that, 
as  counsel  for  the  petitioner,  he  has  examined  the  proceedings, 
and  carefully  inquired  into  all  the  matters  set  forth   in  the 


332  CIRCUIT  COURT JURISDICTION  BY  REMOVAL.      (Ch.  15 

petition,  and  believes  them  to  be  true.     This,  too,  is  one  of  the 
cases  in  which  the  petition  must  be  verified  by  affidavit. 


THE  REMOVAL  BOND. 

129.  In  order  to  effect  a  removal,  the  petitioner  is  required 
to  file  a  bond,  with  proper  surety,  to  insure  the  trans- 
fer on  his  part  of  the  record  in  the  case  to  the  proper 
federal  court  at  the  proper  time,  and  to  cover  all  costs 
incident  to  the  removal  of  the  case. 

The  statute  requires,  in  reference  to  the  main  sources  of 
jurisdiction  by  removal,  that  with  the  petition  the  petitioner 
shall  file  a  bond,  "with  good  and  sufficient  surety,  for  his  or 
their  entering  in  such  circuit  court  on  the  first  day  of  its  then 
next  session  a  copy  of  the  record  in  such  suit,  and  for  paying 
all  costs  that  may  be  awarded  by  the  said  circuit  court  if  said 
court  shall  hold  that  such  suit  was  wrongfully  or  improperly 
removed  thereto,  and  also  for  their  appearing  and  entering  spe- 
cial bail  in  such  suit  if  special  bail  was  originally  requisite 
therein." 

This  bond  is  not  an  ordinary  court  bond,  and  is  not  used  in 
the  usual  sense  of  a  writing  obligatory.24 

In  the  Removal  Cases  25  the  Supreme  Court  approved  a  bond 
not  under  seal  and  signed  with  the  plaintiff's  name  by  his  attor- 
neys. A  defect  in  a  bond  is  not  jurisdictional,  but  the  court 
may  allow  it  to  be  amended,  or  a  new  one  to  be  substituted.28 

It  will  be  observed  that  the  statute  does  not  name  any  fixed 
amount  as  a  penalty.  There  is  some  difference  of  opinion 
among  the  courts  whether  a  bond  should  name  a  penalty  or  not. 
It  would  seem  to  be  the  correct  practice  to  name  a  penalty,  but 
the  penalty  named  should  be  sufficiently  large  to  cover  all  possi- 

24  Removal  Cases,  100  U.  S.  457,  25  L.  Ed.  593;  Loop  v.  Winter 
(C.  C.)  115  Fed.  3G2;   People's  Bank  v.  Insurance  (C.  C.)  53  Fed.  161. 

2  6  100  U.  S.  457,  25  L.  Ed.  593. 

2  6  Overman  Wheel  Co.  v.  Manufacturing  Co.  (C.  C.)  46  Fed.  577; 
Avers  v.  Watson,  113  U.  S.  594,  5  Sup.  Ct.  041,  28  L.  Ed.  1093. 


§  130)  TIME    OF   FILING    PETITION.  333 

ble  costs  in  the  event  of  a  remand ;  and,  if  it  is,  the  better  opin- 
ion is  that  the  bond  would  be  in  proper  form.27 


TIME  OF  FILING  PETITION. 

130.  The  petition  for  removal  must  be  filed  at  or  before  the 
time  when  the  defendant  is  required  by  the  laws  of 
the  state,  or  the  rule  of  the  state  court  in  which  the 
suit  is  brought,  to  first  answer  or  plead  to  the  dec- 
laration or  complaint  of  the  plaintiff.  But  the  ques- 
tion of  the  time  of  filing  the  petition  is  not  one  of 
jurisdiction,  but  merely  modal  or  formal,  and  may  be 
waived. 

In  the  cases  covered  by  the  second  section  of  the  act  of  Au- 
gust 13,  1888,  except  removals  on  the  ground  of  prejudice  or 
local  influence,  the  statute  requires  that  the  defendant  may 
make  and  file  a  petition  in  such  suit  in  such  state  court  at  the 
time  or  any  time  before  the  defendant  is  required  by  the  laws 
of  the  state,  or  the  rule  of  the  state  court  in  which  such  suit  is 
brought,  to  answer  or  plead  to  the  declaration  or  complaint  of 
the  plaintiff.  This  is  quite  a  departure  from  the  policy  of  the 
former  acts,  which  allowed  a  longer  time  within  which  to  file 
the  petition.  At  the  same  time,  the  question  of  the  time  of 
filing  the  petition  is  not  one  of  jurisdiction,  but  is,  as  has  been 
said  more  than  once,  merely  modal  and  formal.  Hence  it  is 
a  requirement  which  may  be  waived  either  by  direct  consent  or 
by  conduct.  The  plaintiff  who  wishes  to  contend  that  the  pe- 
tition has  not  been  filed  in  time  must  act  promptly.  If  he  goes 
to  trial  on  the  merits,  or  contests  the  right  of  removal  on  other 
grounds,  he  waives  this  right.28 

27  Commonwealth  v.  Bridge  Co.  (C.  O.)  42  Fed.  241;  Johnson  v. 
Manufacturing  Co.  (C.  C.)  76  Fed.  616. 

2  8  Guarantee  Co.  v.  Hanway,  104  Fed.  369,  44  C.  C.  A.  312;  Mar- 
tin v.  Railway  Co.,  151  U.  S.  673,  14  Sup.  Ct.  533,  38  L.  Ed.  311; 
Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Daughtry,  138  U.  S.  298,  11  Sup. 
Ct.  306,  34  L.  Ed.  963. 


334  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Cll.  15 

Nor  can  this  question  be  raised  for  the  first  time  in  an  ap- 
pellate court.29 

The  question  when  the  petition  should  be  filed  depends  upon 
the  statutes  and  practice  of  the  different  states.  But  the  peti- 
tion must  be  filed  when  the  defendant  is  required  to  put  in  any 
defense  to  the  complaint,  whether  of  a  dilatory  character  or  to 
the  merits.  If,  under  the  practice  of  the  state  court,  dilatory 
pleas  must  be  filed  at  an  earlier  date  than  pleas  to  the  merits, 
then  the  defendant  must  file  his  petition  at  the  time  when  the 
dilatory  plea  is  due.80 

Rule  in  Case  of  Extension  of  Time. 

The  question  whether  an  extension  of  time  within  which  the 
defendant  shall  answer  extends  the  time  for  filing  the  petition 
is  one  in  which  the  decisions  are  in  great  conflict.  In  the 
New  York  circuit  it  is  held  that  such  an  extension  does  extend 
the  time  for  filing  the  petition.31 

There  is,  however,  highly  respectable  authority  the  other 
way.82 

The  decisions  in  the  different  districts  on  this  point  are 
necessarily  largely  governed  by  the  practice  of  the  states  in 
which  the  decisions  are  rendered.  The  case  of  Martin  v.  Balti- 
more &  O.  Ry.  Co.,  above  cited,  seems  to  establish  that  the  pe- 
tition must  be  filed  before  any  judgment  of  default,  even  condi- 
tional in  its  nature,  is  entered  against  the  defendant.  Hence, 
on  principle,  the  proper  doctrine  appears  to  be  that  if,  at  the 
time  the  extension  is  granted,  no  judgment  by  default  has  been 
entered  against  the  defendant,  and  if  the  effect  of  the  extension 
is  that  no  judgment  by  default  can  be  entered  until  the  period 
of  extension  expires,  then  the  defendant  can  file  his  petition 

29  Knight  v.  Railway  Co.,  61  Fed.  87,  9  C.  C.  A.  376;  Newman  v. 
Schwerin,  61  Fed.  805.  10  C.  C.  A.  129. 

so  MARTIN  y.  RAILWAY  CO.,  151  U.  S.  673,  14  Sup.  Ct.  533,  38  L. 
Ed.  311. 

si  Lord  v.  Railroad  Co.  (C.  C.)  104  Fed.  929;  Dancel  v.  Machinery 
Co.  (C.  C.)  106  Fed.  551. 

32  Fox  v.  Railway  Co.  (C.  C.)  80  Fed.  945. 


§  130)  TIME    OF    FILING    PETITION.  335 

during  such  extension.  But  if  a  judgment  by  default  has  to 
be  set  aside  in  order  to  grant  the  extension,  it  would  be  too 
late. 

In  Chiatovich  v.  Hanchett 33  the  court  held  that  an  exten- 
sion by  stipulation  of  parties,  without  any  court  order,  extended 
the  time  for  filing  the  petition.  This  apparently  is  going  too  far, 
as  the  question  is  determined,  under  the  language  of  the  statute, 
not  by  special  interchanges  of  courtesies  among  counsel,  or 
by  orders  in  special  cases,  but  by  the  general  laws  or  rules  of 
the  state  court.  No  better  test  can  be  laid  down  as  to  the  gen- 
eral provision  than  the  language  of  the  statute  itself.  If,  un- 
der the  state  practice,  the  defendant  is  required,  first,  whether 
there  is  any  extension  or  not,  to  plead  to  the  declaration  or 
complaint,  whether  that  plea  be  dilatory  or  peremptory,  then 
he  must  file  his  petition  when  such  plea  is  due.  If  the  effect 
of  the  extension  under  the  state  practice  is  under  the  general 
rules  of  practice  of  that  state,  and  not  under  special  agreement 
of  counsel,  to  extend  the  time  within  which  he  is  first  required 
to  plead  any  sort  of  plea  on  pain  of  a  default  judgment,  wheth- 
er conditional  or  absolute,  then  the  effect  of  the  extension  would 
be  to  extend  the  right  of  filing  the  petition.  This  seems  to 
the  author  the  meaning  of  the  statute. 

It  has  well  been  held  that  a  party  who  is  not  served  with 
process,  and  only  appeared  on  condition  that  he  should  answer 
within  a  certain  length  of  time,  could  file  his  petition  during 
that  time,  even  though  it  extended  the  period  beyond  the  time 
when  he  would  have  had  to  make  defense,  had  he  been  served.34 

If  the  service  is  void,  the  time  does  not  run  from  such  serv- 
ice, and  the  petition  may  be  filed  even  after  a  judgment  by  de- 
fault, for  the  judgment  by  default  is  void  itself  if  the  service  is 
void.35 

In  proceedings  against  a  nonresident  on  attachment  and  by 
publication,  many  state  Codes  provide  that  the  defendant  may 

33  (C.  C.)  78  Fed.  193. 

«4  Tracy  v.  Morel  (C.  C.)  88  Fed.  801. 

so  Tortat  v.  Manufacturing  Co.  (C.  C.)  Ill  Fed.  426. 


33G  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  15 

appear  within  a  given  time,  if  be  has  not  been  served  with 
process,  set  aside  the  judgment,  and  defend  the  case. 

Under  the  act  of  1875,  which  required  the  petition  to  be  filed 
before  the  first  term  at  which  the  case  could  be  tried,  the  Su- 
preme Court  held  that  a  nonresident  defendant  who  appeared 
after  the  term  and  set  aside  the  default  could  file  his  petition.38 

The  principle  of  this  decision  applies  to  proceedings  under 
the  present  act.  A  proceeding  by  attachment,  not  accompanied 
with  personal  service,  is  void,  except  as  regards  the  property 
attached;  being  in  the  nature  of  an  action  in  rem.  This  be- 
ing the  case,  the  defendant  is  not  in  court  personally  on  such 
proceeding,  and  when  he  comes  into  court  he  comes  with  all 
of  the  rights  which  he  would  have  had  in  an  ordinary  per- 
sonal suit. 
Removals  on  Amended  Declaration  or  Complaint. 

It  frequently  happens  that  the  original  complaint  of  the 
plaintiff  does  not  show  a  removable  case,  as  when  it  makes  par- 
ties who  would  defeat  the  jurisdiction.  Subsequent  thereto 
the  plaintiff,  by  dismissing  his  suit  as  to  some  of  the  defendants, 
or  by  filing  an  amended  petition  showing  on  its  face  some 
ground  of  removal,  changes  the  character  of  the  case.  There 
was  for  a  time  considerable  conflict  among  the  authorities 
whether  a  change  of  this  sort  would  give  the  right  to  remove 
a  case  on  an  amended  petition,  when  it  did  not  first  exist.  It 
had  been  held  that,  where  the  amendment  raised  the  amount  in- 
volved to  the  jurisdictional  amount,  then  a  petition  to  remove 
could  be  filed  within  the  time  when  the  petitioner  was  first 
required  to  answer  the  amended  petition.37 

("  A  recent  decision  of  the  Supreme  Court,  however,  has  put 
the  matter  at  rest,  and  held  that,  where  the  amended  petition 
made  a  removable  case  which  did  not  exist  before,  the  right 
of  1  emoval  could  be  exercised  within  the  time  required  to  plead 
to  the  amended  petition.38 

36  Harter  Tp.  v.  Kornochan,  103  TJ.  S.  5G2,  26  L.  Ed.  411. 

37  Huskins  v.  Railroad  Co.  (C.  C.)  37  Fed.  504,  3  L.  R.  A.  545. 

:;-  Powers  v.  Railway  Co.,  L69  C.  S.  92,  IS  Sup.  Ct.  2G4,  42  L.  Ed. 
r-;;;   Jones  v.  Mosher,  107  Fed.  5G1,  46  C.  C.  A.  471. 


§  130)  TIME   OF   FILING   PETITION.  337 

This  principle,  however,  only  applies  where  the  petition  itself 
or  the  voluntary  act  of  the  plaintiff  shows  a  removable  case. 
A  decision  by  the  court  dismissing  the  case  as  to  one  of  the 
two  defendants  on  the  merits  does  not  result  in  allowing  the 
other  defendant  to  remove.89 

Removals  in  Vacation  of  State  Court. 

Interesting  and  conflicting  questions  of  practice  arise  when 
the  petition  is  filed  during  the  vacation  of  the  state  court.  For 
instance,  under  the  Virginia  practice  the  time  when  the  defend- 
ant is  first  required  to  plead  is  at  a  rule  day,  and  while  the  case 
is  "at  rules,"  as  it  is  usually  designated.  The  rules  are  kept 
by  the  clerk,  and  the  judge  has  no  control  over  proceedings 
at  rules  until  the  case  goes  on  the  trial  docket.  Under  this 
practice,  the  petition  must  be  filed  at  rules — that  is,  in  the 
clerk's  office,  before  the  clerk— and  the  judges  ordinarily  re- 
fuse to  enter  any  order,  because  they  contend  that,  under  the 
state  practice,  they  have  no  power  while  the  case  is  at  rules. 
At  the  same  time,  a  case  cannot  well  be  removed  until  the  court, 
as  a  court,  has  an  opportunity  to  pass  upon  the  question  whether 
the  petition  makes  a  removable  case,  and  whether  the  bond  is 
sufficient.  Under  these  circumstances,  the  proper  practice  is\ 
to  file  the  petition  at  rules,  and  at  the  next  term  of  the  court  to 
bring  it  to  the  attention  of  the  court,  and  ask  the  removal  orderly 
to  be  entered.40 

If,  however,  the  state  judge  has  power  to  act  at  rules  or  in 
vacation,  this  removes  the  case,  without  any  further  order  in 
court.*1 

Time  of  Filing  Petition  in  Removals  on  Ground  of  Prejudice 
or  Local  Influence. 

In  removals  on  the  ground  of  prejudice  or  local  influence, 
the  statute  requires  that  the  petition,  which   in  this  case  is 

39  Whitcomb  v.  Smithson,  175  U.  S.  635,  20  Sup.  Ct.  248,  44  L.  Ed. 

303. 

40  Monroe  v.  Williamson  (G.  C.)  81  Fed.  977;  Hall  v.  Agricultural 
Works  (C.  0.)  48  Fed.  599;    Fox  v.  Railway  Co.  (C.  C.)  80  Fed.  945. 

4i  Mecke  v.  Mineral  Co.,  93  Fed.  697,  35  C.  C.  A.  151. 
Hughes  Fed. .Tub. — 22 


338  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  15 

filed  in  the  United  States  circuit  court,  shall  be  filed  "at  any 
time  before  the  trial  thereof."  This  means  the  first  trial,  and 
consequently  the  application  would  be  too  late  after  a  mis- 
trial.42 

In  removals  on  the  ground  of  denial  of  civil  rights,  the  peti- 
tion must  be  filed  in  the  state  court  "at  any  time  before  the  trial 
or  final  hearing  of  the  cause,"  and  in  suits  against  revenue 
officers  it  must  be  filed  "at  any  time  before  the  trial  or  final 
hearing  thereof."  In  these  cases,  under  the  meaning  given 
these  words  in  previous  acts,  the  petition  could  be  filed  even 
after  a  mistrial,  because  that  would  still  be  before  the  trial 
or  final  hearing.*8 

In  these  two  latter  cases  it  must  be  filed  before  the  trial  is 
commenced.  In  Yulee  v.  Vose  44  it  was  held  that  the  trial 
had  not  commenced,  even  though  the  jury  was  sworn,  and  that 
a  petition  filed  after  the  jury  was  sworn  was  in  time. 

*a  Fisk  v.  Henarie,  142  U.  S.  459,  12  Sup.  Ct.  207,  35  L.  Ed.  1080; 
McDonnell  v.  Jordan,  178  U.  S.  229,  20  Sup.  Ct.  886,  44  L.  Ed.  1048. 

43  Home  Life  Ins.  Co.  v.  Dunn,  19  Wall.  214,  22  L.  Ed.  68;  Bal- 
timore &  O.  R.  Co.  v.  Bates,  119  U.  S.  464,  7  Sup.  CL  285,  30  L.  Ed. 
436. 

44  99  U.  S.  539,  25  L.  Ed.  355. 


§  131)         CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.  339 


CHAPTER  XVI. 

THE  CIRCUIT  COURT  (Continued)— JURISDICTION  BY 

REMOVAL  (Continued)— ORIGINAL  JURISDICTION 

OF  THE  SUPREME  COURT— OTHER  MINOR 

COURTS  OF  ORIGINAL  JURISDICTION. 

131.  Steps  at  Filing  of  Petition. 

132.  Filing  and  Subsequent  Procedure  in  Federal  Court. 

133.  Motion  to  Remand. 

134.  The  Supreme  Court  as  a  Court  of  Original  Jurisdiction. 

135.  Various  Other  Courts  of  Original  Jurisdiction. 

STEPS  AT  FILING  OF  PETITION. 

131.  When  the  petition,  is  to  be  filed  in  the  state  court,  the 
procedure  is  simply  to  take  the  petition  and  bond 
and  present  it  to  the  judge,  if  it  is  a  case  where  it 
must  be  filed  in  open  court,  or  file  it  in  the  clerk's  office, 
where  that  is  the  proper  place.  If  presented  to  the 
judge,  he  ought  to  be  requested  to  sign  an  order  of 
removal.  If  filed  in  the  clerk's  office,  the  judge  ought 
to  be  requested  at  the  next  term  to  sign  such  an  or- 
der. Notice  of  such  action  is  not  required  by  the  stat- 
ute, and  the  cases  which  say  that  notice  should  be 
given  do  not  say  that  it  is  essential,  but  merely  that 
it  is  the  proper  way.* 
Where  the  removal  is  on  the  ground  of  prejudice  or  local 
influence,  the  petition,  as  has  been  seen,  is  filed  in  the 
federal  court,  and  it  must  be  made  to  appear  to  that 
court  that  this  ground  of  removal  exists.  There  is  a 
stronger  reason  in  this  case  for  requiring  notice,2  but 
even  here  the  statute  does  not  expressly  require  it. 

When  the  petition  is  presented  to  the  state  court,  it  has  the 
right  to  consider  and  pass  upon  the  question  whether  the  peti- 

i  Creagh  v.  Insurance  Co.  (C.  (3.)  83  Fed.  849;   Ashe  v.  Insurance 
Co.  (C.  C.)  115  Fed.  234. 

2  Schwenck  v.  Strang,  59  Fed.  209,  8  C.  C.  A.  92. 


340  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Ch.  16 

tion  upon  its  face  shows  a  removable  case.  It  has  not,  how- 
ever, the  right  to  try  any  question  of  fact  bearing  on  the 
question  of  jurisdiction,  for  it  is,  under  the  express  language 
of  the  statute,  the  duty  of  the  court  to  accept  the  petition  and 
bond  and  proceed  no  further  in  the  suit,  and  the  federal  court 
alone  can  try  the  questions  of  jurisdiction  depending  on  the 
facts,  and  not  appearing  on  the  face  of  the  petition.* 

While  it  is  made  the  duty  of  the  state  court  to  accept  the 
petition  and  bond,  and  that  it  should  enter  an  order  doing  so, 
its  failure  to  enter  such  an  order  does  not  defeat  the  right 
of  removal,  but  the  petitioner  can  take  his  transcript  of  the 
record  and  file  it,  and  the  federal  court  will  attain  jurisdiction 
of  the  case.4 

If  the  state  court  enters  an  order  denying  the  removal,  the 
petitioner  can  reserve  an  exception,  and  still  remove  his  case 
to  the  federal  court;  and  his  remaining  in  the  state  court 
after  such  reservation  of  his  right  is  not  a  waiver  of  his  right 
of  removal.5 

In  such  case  the  petitioner  may  take  an  exception  to  the 
refusal  of  the  state  court,  and  then  remain  in  the  state  court, 
fight  the  case  out,  and  appeal  to  the  Supreme  Court  direct 
from  the  court  of  last  resort  of  the  state,  under  section  709 
of  the  Revised  Statutes,  giving  such  right  of  appeal.9 

Or  he  may  remain  in  the  state  court,  fight  the  case  there, 
and  also  take  the  case  to  the  federal  court  and  fight  it  there 
at  the  same  time,  and  such  action  will  not  be  a  waiver  of  his 
rights.7 

«  STONE  v.  SOUTH  CAROLINA,  117  U.  S.  430,  6  Sup.  Ct.  799,  29 
L.  Ed.  962 ;  Powers  v.  Railway  Co.,  169  U.  S.  92,  18  Sup.  Ct  264,  42 
L.  Ed.  673. 

*  Loop  v.  Winter  (C.  C.)  115  Fed.  362. 

b  Kirby  v.  Railway  Co.  (C.  C.)  106  Fed.  551. 

e  STONE  v.  SOUTH  CAROLINA,  117  U.  S.  430,  6  Sup.  Ct.  799,  29 
L.  Ed.  962. 

7  Kern  v.  Huidekoper,  103  U.  S.  485,  26  L.  Ed.  354 ;  CHESAPEAKE 
&  O.  RY.  CO.  v.  WHITE,  111  U.  S.  134,  4  Sup.  Ct.  353,  28  L.  Ed.  378 ; 
Hickman  v.  Railroad  Co.  (C.  C.)  97  Fed.  113. 


§  132)       FILING   AND   PROCEDURE    IN    FEDERAL   COURT.  341 


FILING  AND  SUBSEQUENT  PROCEDURE  IN  FEDERAL 

COURT. 

132.  The  act  requires  a  transcript  of  the  record  to  be  filed  in 
the  circuit  court  in  the  district  where  the  suit  is  pend- 
ing, and  on  the  first  day  of  its  then  next  session.  This 
means  the  federal  court  of  the  district  which  includes 
territorially  the  state  court  where  the  suit  is  pend- 
ing at  the  time  of  removal.  The  place  where  the  suit 
originated  does  not  affect  the  question.^  The  juris- 
diction of  the  federal  court  vests  as  of  the  time  of 
filing  the  petition  in  the  state  court. 

If  the  removal  is  to  the  wrong  federal  court,  this  mistake 
is  a  jurisdictional  one,  and  the  court  does  not  acquire  cogni- 
zance of  the  case.9 

The  jurisdiction  of  the  federal  court  attaches  as  of  the  date 
of  riling  the  petition  in  the  state  court.  Even  during  the  in- 
terval between  the  riling  of  the  petition  in  the  state  court 
and  the  transcript  of  the  record  in  the  federal  court,  the  latter 
has  jurisdiction,  and  will  make  any  orders  necessary  for  the 
preservation  of  the  property,  etc.10 

There  is  some  difference  in  the  decisions  on  the  question 
whether  the  federal  court  during  this  interval  has  sufficient 
jurisdiction  to  preserve  the  property  and  enter  preliminary  or- 
ders, or  whether  it  has  jurisdiction  over  the  whole  case.  The 
rational  view  on  this  question  is  that  taken  by  Judge  Severens 
in  Torrent  v.  S.  K.  Martin  Lumber  Co.11  In  it  he  says  that 
there  is  no  intermediate  state  during  which  neither  court  has 
jurisdiction,  but  that  the  federal  court  has  full  jurisdiction 
over  the  subject;  that,  in  the  exercise  of  its  jurisdiction,  it 
must  regard  the  established  rules  and  practice,  but  that  ques- 
tions as  to  hearing  the  case  too  soon,  or  matters  of  that  sort, 
are  questions  of  procedure,  and  not  of  jurisdiction. 

«  Hess  v.  Reynolds,  113  U.  S.  73,  5  Sup.  Ct.  377,  28  L.  Ed.  927. 
»  Ex  parte  State  Ins.  Co.,  18  Wall.  417,  21  L.  Ed.  904. 
io  Texas  &  St.  L.  R.  Co.  v.  Rust  (C.  C.)  17  Fed.  275. 
"  (C.  C.)  37  Fed.  727. 


842  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.       (Ch.  1G 

The  petition  must  be  filed  in  the  federal  court  "on  the  first 
day  of  its  then  next  session."  There  seems  to  be  a  dearth  of 
decisions  on  the  question  what  is  meant  in  the  statute  by  the 
word  "sessions."  However,  the  word  in  the  Revised  Statutes 
relating  to  the  federal  courts  is  used  interchangeably  with 
"terms,"  and  it  must  mean  that  the  removal  must  be  to  the 
next  term.  The  short  sessions  of  the  courts  held  by  adjourn- 
ments without  notice  and  irregularly  could  hardly  have  been 
in  contemplation  of  Congress.  The  fourth  chapter  of  title  13 
is  headed,  "District  Courts,  Sessions,"  and  yet  all  the  provi- 
sions of  that  chapter  allude  to  the  terms  of  the  district  court. 
The  eighth  chapter  of  title  13  is  headed,  "Circuit  Courts,  Ses- 
sions," and  yet  all  the  provisions  allude  to  terms.  This  is 
clear,  also,  from  the  language  of  section  7  of  the  act  of  March 
3,  1875.  Hence  the  transcript  of  the  record  should  be  filed 
on  the  first  day  of  the  next  term,  subject  to  the  provisions  of 
section  7,  above  recited,  allowing  a  period  of  twenty  days  in 
any  event. 

No  formal  order  of  the  federal  court  placing  the  case  on  the 
docket  is  required.  It  need  simply  be  filed,  and,  though  it  is 
filed  before  the  first  day  of  the  term,  it  takes  effect  as  of  the 
first  day,  if  on  file  at  that  time.12 

Further  Pleadings. 

Although,  as  Judge  Severens  says,  there  is  no  intermediate 
state  between  the  two  courts,  as  far  as  jurisdiction  is  concerned, 
and  the  jurisdiction  of  the  federal  court  attaches  as  soon  as 
the  petition  is  filed  in  the  state  court,  there  is  an  intermediate 
state  of  the  case  in  one  respect,  and  that  is  in  reference  to  the 
pleadings.  As  soon  as  the  petition  is  filed  in  the  state  court, 
that  court  can  proceed  no  further.  Hence,  if  the  record  was 
filed  in  the  clerk's  office,  if  at  rules,  no  rules  can  be  taken  upon 
it,  nor  can  any  default  be  entered  after  the  filing  of  such 
petition.  On  the  other  hand,  until  the  filing  of  the  transcript 
of  the  record  in  the  federal  court,  it  is  impossible  to  take  any 

12  Glover  v.  Shepperd  (C.  C.)  15  Fed.  833. 


§  132)      FILING   AND    PROCEDURE    IN   FEDERAL    COURT.  343 

rules  or  enter  any  orders  of  default  in  that  court,  for  the  case 
is  not  there  for  the  purpose.  Hence,  as  far  as  maturing  the 
case  to  issue  is  concerned,  there  is,  if  not  an  intermediate 
state,  at  least  a  period  of  suspended  animation,  during  which 
the  case  remains  in  statu  quo.  As  soon  as  filed  in  the  federal 
court,  then  the  case  revives,  and  the  pleadings  must  be  made 
up. 

A  failure  to  file  the  record  on  the  first  day  of  the  federal 
court  will  not  defeat  the  right  of  removal,  as  the  delay  is  not 
a  jurisdictional  defect.  In  fact,  if  the  state  court  wrongfully 
refuses  to  remove  the  case,  and  the  petitioner  saves  his  excep- 
tion, and  does  not  file  his  record  in  the  federal  court,  but  fights 
the  case  through  even  to  the  Supreme  Court  of  the  United 
States  on  the  question  of  his  right  of  removal,  and  wins,  he 
can,  after  such  successful  contest,  still  file  his  record  in  the 
federal  court.13 

Place  of  Removal  When  Court  Sits  in  Different  Localities. 

It  is  the  case  in  many  districts  that  the  court  meets  at  differ- 
ent points,  and  it  then  becomes  a  nice  question  where  the 
record  should  be  filed.  In  the  Eastern  District  of  Virginia, 
for  illustration,  there  is  but  one  district  court  for  the  whole 
district,  and  there  are  no  laws  requiring  cases  in  certain  por- 
tions of  the  territory  of  that  district  to  be  brought  at  certain 
points.  The  court  meets  at  three  places — Richmond,  Norfolk, 
and  Alexandria — but  it  is  one  court,  and  has  but  one  clerk, 
and  its  jurisdiction  extends  over  the  entire  district.  Under 
the  language  of  the  act,  which  requires  the  record  to  be  filed 
in  the  circuit  court  "on  the  first  day  of  its  then  next  session," 
it  would  seem  very  clear  that,  no  matter  where  the  case  orig- 
inated, it  ought  to  be  filed  at  the  next  term  of  the  circuit  court. 
For  instance,  although  Norfolk  is  one  of  the  places  of  sitting 
of  the  circuit  court,  a  suit  pending  in  the  state  court  at  Norfolk 
ought  to  be  removed,  and  the  record  filed  at  Richmond,  if  that 

is  Baltimore  &  O.  Ry.  Co.  v.  Koontz,  104  U.  S.  5,  26  L..  Ed.  643: 
National  S.  S.  Co.  v.  Tugman,  106  U.  S.  118,  27  L.  Ed.  87. 


314  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Cll.  16 

is  the  next  place  in  the  district  where  the  court  meets.  But 
an  order  of  transfer  may  afterwards  be  obtained  to  the  most 
convenient  place  of  session. 

In  the  case  of  Cobb  v.  Globe  Mut.  Life  Ins.  Co.,1*  the  judge 
remarks,  in  passing,  that  the  record  ought  to  be  filed  at  the 
place  of  session  most  convenient  to  the  state  court  where  it 
is  pending.  An  examination  of  the  case  will  show  that  this 
was  a  dictum,  as  the  record  had  not  been  filed  in  time  for 
any  term  of  the  circuit  court;  and,  while  this  may  be  a  good 
rule  of  convenience,  there  is  nothing  in  the  statute  to  justify  it. 

In  the  case  of  Lucker  v.  Phcenix  Assur.  Co.,16  Circuit  Judge 
Simonton  held  that  the  proper  place  to  file  the  record  was 
where  the  court  was  next  to  sit,  although  he  went  on  to  say 
that  as  the  filing  in  a  certain  court  was  not  a  question  of  juris- 
diction, but  convenience,  and  the  court  had  the  discretionary 
power  to  allow  a  record  to  be  filed  even  after  the  time,  he 
would  allow  the  record  in  this  case  to  be  filed  at  the  most 
convenient  point.  Strangely  enough,  he  refers  to  this  decision 
of  Cobb  v.  Globe  Mut.  Life  Ins.  Co.  as  an  analogous  case; 
but  the  difference  between  the  place  where  the  record  ought 
to  be  filed,  and  the  power  of  the  judge  to  excuse  its  being 
filed  elsewhere,  is  a  very  obvious  one. 

In  Pierce  v.  Corrigan  18  it  was  held  that  the  proper  place 
was  the  next  place  of  session  of  the  court,  whether  that  was 
the  most  convenient  point  or  not,  but  that  where  the  mistake 
was  bona  fide  the  court  would  not  remand  the  case  on  that 
account. 

When  the  record  is  filed  too  late,  the  court  has  a  legal  dis- 
cretion whether  to  remand  or  not.17 

It  may  happen  that  the  defendant,  after  filing  his  petition 
in  the  state  court,  will  purposely  not  file  it  in  the  federal  court. 
In  order  to  prevent  any  injustice  under  these  circumstances, 

14  Fed.  Cas.  No.  2,921.  "  (C.  C.)  66  Fed.  161. 

16  (C.  C.)  77  Fed.  657. 

it  Kidder  v.  Featteau  (C.  C.)  2  Fed.  616;  St.  Paul  &  C.  R.  Co.  v. 
McLean,  108  U.  S.  212,  2  Sup.  Ct.  498,  27  L.  Ed.  703. 


§  132)      FILING  AND   PROCEDURE   IN   FEDERAL  COURT.  345 

it  has  been  held  that  the  plaintiff  himself  may  file  the  record 
in  the  federal  court,  and  then  move  to  remand  if  he  desires.18 

Power  of  Federal  Court  after  Removal. 

The  third  section  of  the  act  of  August  13,  1888,  expressly 
provides  that  the  case  thereupon  proceeds  in  the  same  manner 
as  if  it  had  originally  been  commenced  in  the  circuit  court. 
However,  the  federal  court  only  attains  the  jurisdiction  which 
the  state  court  had,  and  hence  any  point  can  be  made  in  the 
federal  court  that  could  have  been  made  in  the  state  court.19 

The  petitioner  after  removal  may  even  make  points  ques- 
tioning the  jurisdiction  of  the  case  on  the  ground  of  improper 
service  of  process,  or  other  points  for  which  a  special  appear- 
ance would  have  to  be  entered,  for  it  is  well  settled  that  the 
filing  of  the  petition  for  removal  is  not  a  general  appearance. 
The  reason  of  this  is  that  the  object  of  removing  a  case  is  to 
give  the  federal  court  jurisdiction  to  try  any  questions  that 
can  arise  in  the  case,  as  it  is  necessary  for  the  protection  of 
the  nonresident  defendant  that  the  federal  court  may  pass 
upon  all  questions  involved. 

In  Goldey  v.  Morning  News 20  the  petition  for  removal 
stated  upon  its  face  that  it  was  intended  only  as  a  special 
appearance,  and  the  court  held  that  when  so  worded  it  had 
only  that  effect. 

But  in  the  case  of  Wabash  W.  Ry.  Co.  v.  Brow  21  the  peti- 
tion was  in  the  ordinary  form,  and  did  not  purport  on  its  face 
to  be  a  special  appearance.  The  court  held  in  this  case,  also, 
that  it  was,  in  law,  only  a  special  appearance,  and  was  not  a 
waiver  of  the  right  to  raise  any  defects  even  in  the  service 
of  process. 


i»  Anderson  v.  Appleton  (C.  O.)  32  Fed.  855. 

lo  East  Tennessee,  V.  &  G.  R.  Co.  v.  Telephone  Co.,  112  U.  S.  306, 
5  Sup.  Ct.  168,  28  L.  Ed.  746. 

20  156  U.  S.  518,  15  Sup.  Ct.  559,  39  L.  Ed.  517. 

2i  WABASH  W.  RY.  CO.  v.  BROW.  164  U.  S.  271,  17  Sup.  Ct.  126, 
41  L.  Ed.  431.     See,  also,  Corbitt  v.  Bank  (C.  C.)  114  Fed.  602. 


346  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      ^Ch.  lt> 


MOTION  TO  REMAND. 

133.  The  proper  way  for  the  party  who  opposes  the  removal 
to  question  the  jurisdiction  of  the  court  is  hy  a  mo- 
tion made  in  the  federal  court  to  remand  the  case  to 
the  state  court.  On  this  motion  in  the  federal  court 
he  can  try  both  questions  of  law  and  fact,  but  the 
allegations  of  the  petition  are  prima  facie  to  be  taken 
as  true.22  The  decision  of  the  circuit  court  remand- 
ing the  case  is  not  appealable. 

It  is  expressly  provided  in  the  act  that,  if  the  federal  court 
remands  the  case,  there  can  be  no  appeal  from  this  decision ; 
and  this  means  that  there  cannot  only  be  no  direct  process  to 
review  the  decision  by  appeal  or  writ  of  error,  but  that  it  can- 
not be  questioned  by  any  other  process,  like  mandamus.  The 
decision  of  the  circuit  court  on  the  subject  is  final  and  conclu- 
sive.23 

Nor  can  the  remanding  of  the  case  by  the  circuit  court  be 
questioned  by  writ  of  error  to  the  state  court  after  the  state 
court  has  resumed  jurisdiction. 

In  Missouri  Pac.  Ry.  Co.  v.  Fitzgerald,24  the  state  court 
had  first  entered  an  order  removing  the  case,  and  then  the 
circuit  court  had  remanded  it.  The  case  thereupon  proceeded 
in  the  state  court,  and  the  party  who  had  originally  petitioned 
for  its  removal  took  out  a  writ  of  error  to  the  state  court  from 
the  Supreme  Court  on  the  ground  that  he  was  denied  a  federal 
right.  The  Supreme  Court  held  that  his  denial  of  this  right 
was  not  by  the  state  court,  but  by  the  circuit  court,  and  that 
its  acts  could  not  be  reviewed  in  this  indirect  way. 

The  decision  of  Cole  v.  Garland,25  if  not  in  conflict  with 
this  decision,  can  only  be  sustained  on  the  ground  that  it  was 

22  Loop  v.  Winter  (C.  C.)  115  Fed.  362. 

23  Ex  parte  Pennsylvania  Co.,  137  U.  S.  451,  11  Sup.  Ct.  141.  34 
L.  Ed.  738;  Powers  v.  Railway  Co.,  169  U.  S.  92,  18  Sup.  Ct.  264, 
42  L.  Ed.  673. 

24  1G0  U.  S.  556,  16  Sup.  Ct.  389,  40  L.  Ed.  536. 
2  6  107  Fed.  759,  46  C.  C.  A.  626. 


§  13i)         SUPREME    COURT — ORIGINAL   JURISDICTION.  347 

an  attempt  to  appeal  from  the  state  court  in  a  case  where 
there  was  a  denial  of  a  civil  right,  which  is  governed  by  a 
different  statute  from  the  general  removal  act. 

The  refusal  of  the  circuit  court  to  remand  a  case  can  be 
made  the  subject  of  exception,  and  can  be  taken  up  after  a 
final  decree  in  the  case.     It  is,  however,  not  a  final  decree.26 

After  a  case  is  remanded  to  the  state  court,  its  jurisdiction 
revests,  and  the  case  proceeds  there  just  as  it  would  have 
done  in  the  first  instance.27 


THE  SUPREME  COURT  AS  A  COURT  OF  ORIGINAL 
JURISDICTION. 

134.  The  Supreme  Court  of  the  United  States  exercises  origi- 
nal jurisdiction  in  cases  affecting  ambassadors,  ptfb- 
lic  ministers,  and  consuls,  and  civil  cases  involving 
controversies  where  a  state  is  a  party,  comprehending 
controversies : 

(a)  Between  states — Jurisdiction  exclusive. 

(b)  Between  the  United  States  and   a  state. 

(c)  Between  a  state  and  its  citizens. 

(d)  Between  a  state  and  citizens  of  another  or  other  states. 

(e)  Between  a  state  and  an  alien  or  aliens. 

The  third  article  of  the  federal  Constitution  expressly  re- 
quires that  there  shall  be  one  Supreme  Court,  and  this  is  the 
only  court  established  by  the  Constitution  itself.  The  second 
section  of  the  same  article  defines  the  federal  judicial  power, 
and,  among  others,  names  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  controversies  between  two  or 
more  states,  and  controversies  between  a  state  and  citizens  of 
another  state. 

The  same  section  further  provides  that  in  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls,  and  those 

26  Edrington  v.  Jefferson.  Ill  TJ.  S.  770.  4  Sup.  Ct.  683.  28  L.  Ed. 
594;  Bender  v.  Pennsylvania  Co.,  148  U.  S.  502,  13  Sup.  Ct.  640,  37 
L.  Ed.  537. 

2T  Birdseye  v.  Shaeffer  (C.  C.)  37  Fed.  821. 


348  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Cll.  16 

in  which  a  state  shall  be  a  party,  the  Supreme  Court  shall  have 
original  jurisdiction.  This  provision  giving  original  jurisdic- 
tion to  the  Supreme  Court  direct  does  not,  however,  prevent 
Congress  from  conferring  concurrent  jurisdiction  even  in  those 
cases  on  other  federal  courts,  if  it  sees  fit.28 

Acting  under  this  grant,  Congress,  by  section  687  of  the 
Revised  Statutes,29  has  provided  as  follows: 

"The  Supreme  Court  shall  have  exclusive  jurisdiction  of 
all  controversies  of  a  civil  nature  where  a  state  is  a  party, 
except  between  a  state  and  its  citizens,  or  between  a  state  and 
citizens  of  other  states,  or  aliens,  in  which  latter  cases  it  shall 
have  original,  but  not  exclusive,  jurisdiction.  And  it  shall 
have  exclusively  all  such  jurisdiction  of  suits  or  proceedings 
against  embassadors,  or  other  public  ministers,  or  their  domes- 
tics, or  domestic  servants,  as  a  court  of  law  can  have  consist- 
ently with  the  law  of  nations ;  and  original,  but  not  exclusive, 
jurisdiction  of  all  suits  brought  by  embassadors,  or  other  pub- 
lic ministers,  or  in  which  a  consul  or  vice-consul  is  a  party." 

Controversies  Where  a  State  is  a  Party. 

It  will  be  observed  that  the  statute  limits  these  cases  to  con- 
troversies of  a  civil  nature.  This  was  in  pursuance  of  the 
decisions  rendered  under  the  constitutional  grant,  which  had 
held  that  the  intent  of  the  Constitution  was  simply  to  confer 
upon  the  federal  courts  jurisdiction  of  that  sort.  It  could 
not  have  been  the  intent  of  the  framers  of  the  Constitution 
to  give  the  federal  court  jurisdiction  of  criminal  proceedings 
in  a  state  court.80 

Proceedings  for  penalties,  or  even  a  suit  by  a  state  on  a 
judgment  recovered  under  a  statute  creating  a  penalty,  are 
not  within  the  grant.81 

2  8  Bors  v.  Preston,  111  U.  S.  252,  4  Sup.  Ct.  407,  28  L.  Ed.  419; 
Ames  v.  Kansas,  111  U.  S.  449,  4  Sup.  Ct.  437,  28  L.  Ed.  482. 

2  8  U.  S.  Comp.  St.  1901,  p.  565. 

so  Cohens  v.  Virginia,  6  Wheat.  264,  5  L.  Ed.  257. 

si  WISCONSIN  v.  INSURANCE  CO.,  127  U.  S.  265,  8  Sup.  Ct 
1370,  32  L.  Ed.  239. 


§  134)         SUPREME   COURT — ORIGINAL  JURISDICTION.  349 

Nor  was  it  the  intent  to  give  jurisdiction,  merely  because 
a  state  happens  to  be  named  as  a  party,  over  such  cases  as 
were  not  properly  cognizable  by  courts  of  justice — as,  for 
instance,  mere  political  questions.82 

Controversies  where  a  state  is  a  party  may  be  considered 
under  the  several  following  heads: 

1.  Controversies  between  states. 

2.  Controversies  between  the  United  States  and  states. 

3.  Controversies  between  a  state  and  its  own  citizens. 

4.  Controversies  between  a  state  and  citizens  of  other  states. 

5.  Controversies  between  states  and  aliens. 

Controversies  between  States. 

In  this  case  the  jurisdiction  of  the  Supreme  Court  is. exclu- 
sive, it  being  thought  that  it  was  the  only  tribunal  of  sufficient 
dignity  to  justify  bringing  sovereign  states  before  it.  The 
states  alluded  to  are  states  of  the  Union.33 

And  it  means  states  as  a  unit,  not  mere  political  subdivisions 
of  states,  like  counties.8* 

Same — Boundary  Disputes. 

This  is  the  most  common  instance  in  which  jurisdiction  has 
been  exercised  by  the  Supreme  Court,  and  the  cases  under 
this  subject  are  quite  numerous.  In  such  case  the  Supreme 
Court  uses  the  forms  of  equity  proceedings,  and  frames  its 
own  pleadings  and  process  in  each  case.  An  interesting  case 
on  the  subject  is  Rhode  Island  v.  Massachusetts.85 

Same — Other  Instances. 

There  are  many  other  disputes  between  states,  however, 
which  come  within  the  purview  of  this  act.     For  instance,  a 

32  state  of  Georgia  v.  Stanton,  6  Wall.  50,  18  L.  Ed.  721. 

83  Texas  v.  White,  7  Wall.  700,  19  L.  Ed.  227. 

34  Lincoln  Co.  v.  Luning,  133  U.  S.  529,  10  Sup.  Ct  363,  33  L.  Ed. 
766. 

3  5  12  Pet.  657,  9  L.  Ed.  1233;  13  Pet.  23,  10  L.  Ed,  41;  14  Pet. 
210,  10  L.  Ed.  423;    15  Pet.  233,  10  L.  Ed.  721. 


350  CIRCUIT  COURT — JURISDICTION  BY  REMOVAL.      (Cll.  16 

suit  by  Missouri  against  Illinois  to  prevent  a  political  subdi- 
vision of  the  latter  state  from  emptying  into  the  Mississippi 
river,  by  a  drainage  canal,  the  sewerage  of  the  city  of  Chicago, 
was  held  within  the  jurisdiction  of  the  court.36 

This  provision,  however,  cannot  be  used  in  such  a  manner 
as  to  allow  a  state  having  no  interest  itself  to  merely  permit 
the  use  of  its  name  to  its  citizens  for  the  purpose  of  collecting 
debts— as,  for  instance,  suits  by  a  state  for  the  benefit  of  its 
citizens  against  another  state  on  the  bonds  of  the  latter.37 

But  where  the  state  is  the  actual  owner  of  the  bonds,  and 
those  bonds  are  secured  by  stock  pledged  by  way  of  mortgage 
or  collateral,  the  Supreme  Court  has  jurisdiction  of  a  suit  by 
such  state,  as  owner,  at  least  to  the  extent  of  foreclosing  its 
mortgage,  although  the  bonds  were  merely  given  to  the  state, 
and  although  the  motive  of  the  donors  was  to  enable  the  state 
to  test  their  validity  by  such  suit.38 

On  the  other  hand,  a  suit  by  a  state  against  another  state 
to  prevent  the  use  by  the  latter  state  of  its  quarantine  laws 
in  such  a  way  as  to  affect  the  commerce  of  citizens  of  the  plain- 
tiff state  cannot  be  sustained,  since  the  state,  as  a  state,  would 
have  no  interest  in  such  a  suit,  but  it  would  really  be  for  the 
benefit  of  its  citizens  alone.39 
Controversies  between  the  United  States  and  a  State. 

The  Supreme  Court  has  jurisdiction  of  such  controversies.40 

Controversies  between  a  State  and  Its  Own  Citizens. 

This  does  not  give  jurisdiction  of  a  suit  by  the  citizens 
against  the  state,  for  a  state  is  a  sovereign  power,  and  cannot 
be  sued  without  its  consent.41 

36  MISSOURI  v.  ILLINOIS,  180  U.  S.  208,  21  Sup.  Ct.  331,  45  L. 
Ed.  497. 

8  7  New  Hampshire  v.  Louisiana,  108  U.  S.  76,  2  Sup.  Ct.  176,  27 
L.  Ed.  656. 

s§  SOUTH  DAKOTA  V.  NORTH  CAROLINA,  192  U.  S.  286,  24 
Sup.  Ct.  269,  48  L.  Ed.  448. 

39  Louisiana  v.  Texas,  176  U.  S.  1,  20  Sup.  Ct.  251,  44  L.  Ed.  347. 

40  u.  S.  v.  Texas,  143  U.  S.  621,  12  Sup.  Ct.  4SS,  36  L.  Ed.  285. 
4i  Hans  v.  Louisiana,  134  U.  S.  1,  10  Sup.  Ct.  504,  33  L.  Ed.  842 


§  134)         SUPREME    COURT — ORIGINAL   JURISDICTION.  351 

Nor  can  jurisdiction  be  sustained  in  a  suit  by  a  state  against 
defendants  some  of  whom  are  its  own  citizens  and  some  citi- 
zens of  other  states,  for  that  does  not  fall  within  either  of  the 
classifications  of  judicial  power  named  in  the  second  section 
of  article  3  of  the  Constitution.  It  is  not  a  controversy  be- 
tween a  state  and  its  own  citizens,  nor  a  controversy  be- 
tween a  state  and  citizens  of  another  state.42 

Controversies  between  a  State  and  Citizens  of  Another  State. 
Soon  after  the  adoption  of  the  federal  Constitution,  the  Su- 
preme Court  decided  in  Chisholm  v.  Georgia,43  that  this  consti- 
tutional grant  enabled  a  citizen  of  another  state  to  sue  the  state 
in  the  Supreme  Court.  The  uproar  created  by  this  decision  is 
well  known  in  our  political  history,  and  resulted  in  the  adop- 
tion of  the  eleventh  amendment  to  the  Constitution,  which  ex- 
pressly forbade  such  suits,  so  that  a  state  cannot  now  be  made 
a  defendant  at  the  suit  of  a  citizen  of  another  state.4* 

Controversies  between  a  State  and  Aliens. 

The  same  principle  would  prevent  an  alien  from  suing  a 
state  as  defendant,  and  it  is  perfectly  clear  that  a  suit  between 
aliens  and  a  private  citizen  would  not  come  under  this  classi- 
fication.48 

Proceedings  Against  Ambassadors. 

These  suits  only  lie  in  cases  where  such  parties  can  be  sued 
under  the  general  principles  of  international  law ;  and  the  pro- 
vision does  not  apply  to  a  citizen  of  the  United  States,  though 
he  may  be  a  consul  general  of  a  foreign  power,  when  he  is 

42  California  v.  Pacific  Co.,  157  U.  S.  229.  15  Sup.  Ct.  591,  39  L-. 
Ed.  683. 

43  2  Dall.  419,  1  L.  Ed.  440. 

44Hagood  v.  Southern,  117  U.  S.  52,  6  Sup.  Ct  608,  29  L.  Ed. 
805. 

46  Ex  parte  Barry,  2  How.  65,  11  L.  Ed.  181. 


352  CIRCUIT  COURT JURISDICTION  BY  REMOVAL.      (Ch.  16 

merely  acting  temporarily  in  the  absence  of  the  regular  diplo- 
matic representative.4* 


VARIOUS  OTHER  COURTS  OF  ORIGINAL  JURISDICTION. 

135.  Besides  the  courts  heretofore  discussed,  there  are  many 
important  federal  courts  vested  with  original  jurisdic- 
tion, hut  not  of  general  interest  to  the  practitioner, 
and  therefore  heyond  the  purview  of  this  treatise. 
Such  are  the  court  of  claims,  the  court  of  private  land 
Claims,  the  courts  of  original  jurisdiction  of  the  Dis- 
trict of  Columbia,  and  the  territorial  courts. 

«« In  re  Baiz,  135  U.  S.  403,  10  Sup.  Ct.  854,  34  L.  Ed.  222. 


136)  PROCEDURE — ORIGINAL   JURISDICTION.  353 


CHAPTER  XVH. 

PROCEDURE  IN  THE  ORDINARY  FEDERAL  COURTS  OF 
ORIGINAL  JURISDICTION— COURTS  OF  LAW. 

136.  Distinction  between  Law  and  Equity. 

137.  Procedure  in  Courts  of  Law. 

138.  Same — Process. 

139.  Same — Attachments. 

140.  Same — Appearances. 

141.  Same — Parties  to  Common-Law  Actions. 
342.  Same — Pleading. 

143.  Same — Continuances. 

144.  Same— Trial. 

145.  Same — Same — Evidence. 

146.  Same — Same — Instructions  to  Jury. 

147.  Same — Same — Bill  of  Exceptions. 

148.  Same — Same — Verdict. 

149.  Same — Motion  for  New  Trial. 

150.  Same — Motion  in  Arrest  of  Judgment. 

151.  Same — Judgment. 

152.  Same — Execution. 


DISTINCTION  BETWEEN  LAW  AND  EQUITY. 

136.  The  distinction  between  law  and  equity  in  the  federal 
courts  in  all  matters  of  procedure  is  most  carefully  pre- 
served and  guarded,  for  it  is  a  distinction  made  by  the 
Constitution  itself.  Hence  the  federal  courts  preserve 
this  distinction,  and  are  not  affected  by  the  reform  pro- 
cedure adopted  in  many  of  the  state  courts  abolishing 
it. 

Equitable  Titles. 

For  this  reason  equitable  titles  or  suits  of  an  equitable  na- 
ture cannot  be  sustained  on  the  common-law  side  of  the  federal 
court,  nor  can  a  state  statute  prescribing  a  remedy  at  law  for 
UllGHES  Fed.Juk. — 23 


364  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  17 

a  cause  of  action  essentially  equitable  in  its  nature  apply  to  the 
federal  courts.1 

On  the  same  principle,  although  the  federal  courts  will  fol- 
low the  state  courts  in  their  rules  as  to  the  joinder  of  causes 
of  action,  provided  the  causes  of  action  are  all  legal  in  their 
nature,  they  will  not  allow  the  joinder  of  legal  and  equitable 
causes  of  action  in  one  suit.1 

Equitable  Defenses. 

So,  too,  equitable  defenses  cannot  be  set  up  in  the  federal 
courts  in  actions  at  law.  For  instance,  they  cannot  take  cog- 
nizance of  a  plea  of  equitable  set-off ; 8  nor  of  an  equitable  title 
in  defense  to  an  action  of  ejectment.4  But  many  defenses 
equitable  in  nature  may  be  proved  by  way  of  counterclaim  un- 
der a  plea  of  the  general  issue  or  payment,  if  growing  out  of 
the  same  transaction;  that  being  allowable  under  the  later 
common-law  decisions.0 

Nor  can  a  reply  to  a  plea  be  made  which  sets  up  an  equitable 
ground  as  a  means  of  defeating  the  defense  made  by  the  plea ; 
as,  for  instance,  where  the  defendant  pleaded  a  release,  the 
plaintiff  cannot  reply  that  the  release  was  obtained  by  fraud 
and  misrepresentation,  though  the  state  practice  allowed  it.9 

i  Fenn  v.  Holme,  21  How.  481,  16  L.  Ed.  198;  Lindsay  v.  Bank, 
156  U.  S.  485,  15  Sup.  Ct.  472,  39  L.  Ed.  505;  Jewett  Car  Co.  v. 
Construction  Co.  (C.  C.)  107  Fed.  622. 

2  SCOTT  v.  NEELY,  140  U.  S.  106,  11  Sup.  Ct.  712,  35  L.  Ed. 
358;  Bennett  v.  Butterworth,  11  How.  669,  13  L.  Ed.  859;  Jones  v. 
Fidelity  Co.  (C.  C.)  123  Fed.  506. 

3  Scott  v.  Armstrong,  146  U.  S.  499,  13  Sup.  Ct.  148,  36  L.  Ed. 
1059 ;  Connolly  v.  Pipe  Co.,  184  U.  S.  540,  22  Sup.  Ct.  431,  46  L.  Ed. 
679. 

*  Schoolfield  v.  Rhodes,  82  Fed.  153,  27  C.  C.  A.  95. 

g  DUSHANE  v.  BENEDICT,  120  U.  S.  630,  7  Sup.  Ct  696,  30  L. 
Ed.  810. 

•  Hill  v.  Railroad  Co.,  113  Fed.  914,  51  C.  C.  A.  544. 


§  137)  PROCEDURE    IN    COURTS    OF    LAW.  353 


PROCEDURE  IN  COURTS  OF  LAW. 

137.  The  practice,  pleadings,  and  forms  and  modes  of  pro- 
ceeding in  civil  causes,  other  than  equity  and  admi- 
ralty cases  in  the  circuit  and  district  courts  of  the 
United  States,  conform  as  nearly  as  practicable  to 
those  existing  in  like  causes  in  the  courts  of  record  of 
the  state  within  which  the  circuit  or  district  courts 
are  held,  except  that  the  federal  courts  are  given  pow- 
er within  prescribed  limits  to  make  rules  for  the  reg- 
ulation of  the  details  of  their  oxen  practice,  provided, 
however,  the  substance  and  general  methods  of  proce- 
dure in  the  state  courts  are  observed. 

The  subject  of  procedure  is  regulated  by  chapter  18  of  title 
13  of  the  Revised  Statutes.7  In  so  far  as  this  applies  to  the 
common-law  courts,  the  most  important  provision  is  section  5 
of  the  act  of  June  1,  1872,  embodied  in  section  914  of  the  Re- 
vised Statutes,8  which  reads  as  follows : 

"The  practice,  pleadings,  and  forms  and  modes  of  proceed- 
ing in  civil  causes,  other  than  equity  and  admiralty  causes,  in 
the  circuit  and  district  courts,  shall  conform,  as  near  as  may 
be,  to  the  practice,  pleadings,  and  forms  and  modes  of  pro- 
ceeding existing  at  the  time  in  like  causes  in  the  courts  of 
record  of  the  state  within  which  such  circuit  or  district  courts 
are  held,  any  rule  of  court  to  the  contrary  notwithstanding." 

This  act  must  also  be  construed  in  connection  with  section 
918  of  the  Revised  Statutes,9  which  reads : 

"The  several  circuit  and  district  courts  may,  from  time  to 
time,  and  in  any  manner  not  inconsistent  with  any  law  of  the 
United  States,  or  with  any  rule  prescribed  by  the  Supreme 
Court  under  the  preceding  section,  make  rules  and  orders 
directing  the  returning  of  writs  and  processes,  the  filing  of 
pleadings,  the  taking  of  rules,  the  entering  and  making  up  of 
judgments  by  default,  and  other  matters  in  vacation,  and  other- 

7  U.  S.  Comp.  St.  1901,  p.  680.        •  U.  S.  Comp.  St.  1901,  p.  684. 
»  U.  S.  Comp.  St.  1901,  p.  6S5. 


356  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  17 

wise  regulate  their  own  practice  as  may  be  necessary  or  con- 
venient for  the  advancement  of  justice  and  the  prevention  of 
delays  in  proceedings." 

Under  these  two  sections  it  is  well  settled,  speaking  in  gen- 
eral, that  the  federal  courts  are  not  bound  to  adopt  the  state 
practice  in  all  its  details,  but  that  they  have  a  discretion  in  con- 
forming only  "as  near  as  may  be,"  and  in  regulating  by  rule 
details  which  would  not  change  the  substance  and  general 
methods  of  procedure  of  the  state  practice.10 


SAME—PROCESS. 

138.  Tlie  federal  courts  adopt  the  general  forms  of  process  of 
the  state  courts  on  the  common-law  side,  subject,  how- 
ever, to  their  own  regulations.  But  the  federal  law  re- 
quires that  their  process  shall  be  under  the  seal  of  the 
court,  and  signed  by  the  clerk,  and  that  those  issuing 
from  the  Supreme  Court  or  circuit  court  shall  bear 
teste  of  the  chief  justice  or  associate  justice  next  in 
precedence  when  the  chief  justiceship  is  vacant;  and 
those  issuing  from  the  district  court  shall  bear  teste  of 
the  district  judge;  or,  when  that  office  is  vacant,  of  the 
clerk. 
Defective  process  may  be  amended,  but  no  amendment  can 
make  a  void  process  valid. 

The  federal  courts  adopt  the  general  forms  of  process  of  the 
state  courts  on  the  common-law  side,  subject,  however,  to  their 
own  regulations.  Sections  911  and  912,  however,  are  obliga- 
tory on  process  of  the  federal  courts.  They  require  that  the 
process  shall  be  under  the  seal  of  the  court,  and  signed  by  the 
clerk,  and  that  those  issuing  from  the  Supreme  Court  or  circuit 
court  shall  bear  teste  of  the  chief  justice  or  associate  justice 
next  in  precedence  when  the  chief  justiceship  is  vacant;   and 

10  SHEPARD  v.  ADAMS,  168  U.  S.  618,  18  Sup.  Ct.  214,  42  L. 
Ed.  602;  Osborne  v.  Detroit  (C.  C.)  28  Fed.  385;  Ewing  v.  Burnham 
(C.  C.)  74  Fed.  384. 


§  138)  PROCEDURE    IN    COURTS    OF    LAW.  357 

those  issuing  from  the  district  court  shall  bear  teste  of  the 
district  judge,  or,  when  that  office  is  vacant,  of  the  clerk. 
Hence,  under  this  provision,  no  process  can  be  used  in  the  fed- 
eral courts  which  does  not  issue  from  the  court,  and  is  not  in 
conformity  with  the  provisions  of  these  sections.  This  ex- 
cludes the  procedure  by  motion  to  recover  money  common  in 
some  states,  when  the  notice  of  motion  is  simply  signed  by  the 
attorneys  and  served  on  the  attorneys.  A  motion  to  recover 
money,  when  authorized  by  state  practice,  can  be  used  in  the 
federal  courts ;  but  in  such  case  the  notice  of  the  motion  which 
is  served  on  the  defendant  must  be  signed,  not  by  the  attorneys, 
but  by  the  clerk,  and  must  be  under  the  seal  of  the  court.  In 
that  form  the  procedure  is  correct,  and  not  at  all  uncommon.11 
Except  as  to  the  method  of  signature,  however,  the  form  of 
the  process  in  the  state  courts  on  the  common-law  side  can  be 
used  in  the  federal  courts.12 

Amendments. 

Process  issuing  from  the  federal  courts  may  be  amended 
under  the  provisions  of  section  948  of  the  Revised  Statutes,13 
which  enacts: 

"Any  circuit  or  district  court  may  at  any  time,  in  its  discre- 
tion, and  upon  such  terms  as  it  may  deem  just,  allow  an 
amendment  of  any  process  returnable  to  or  before  it,  where  the 
defect  has  not  prejudiced,  and  the  amendment  will  not  injure 
the  party  against  whom  such  process  issues." 

This  only  allows,  however,  an  amendment  of  a  defective 
process.  If  the  defect  is  so  serious  as  to  make  it  absolutely 
void,  and  no  process  at  all,  then  it  cannot  be  amended;  as 
where  it  is  neither  signed  nor  sealed.14 

11  Dwight  v.  Merritt  (C.  C.)  4  Fed.  614;  Peaslee  v.  Haberstro, 
Fed.  Cas.  No.  10,884. 

12  Gillum  v.  Stewart  (C.  C.)  112  Fed.  30. 
is  U.  S.  Comp.  St.  1901,  p.  695. 

14  Dwight  v.  Merritt  (C.  C.)  4  Fed.  614. 


358  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  17 

Service. 

The  service  of  process  is  as  provided  by  the  state  statute.15 
But  in  the  case  of  foreign  corporations  this  is  subject  to  the 
proviso  that  the  corporation  must  be  doing  business  within  the 
jurisdiction,  before  process  can  be  served  on  it.  If  it  is  not 
carrying  on  business  there,  service  cannot  be  made  upon  one 
of  its  officers  merely  because  he  resides  there.10 


SAME— ATTACHMENTS. 

139.  The  state  attachment  laws  in  force  on  Jnne  1,  1872,  and 
any  later  ones  adopted  by  rule  of  court,  are  available  in 
the  federal  courts  in  common-law  causes,  except  as 
against  a  nonresident  not  personally  served  in  the  dis- 
trict. 

Section  915  of  the  Revised  Statutes17  provides  as  follows: 
"In  common-law  causes  in  the  circuit  and  district  courts  the 
plaintiff  shall  be  entitled  to  similar  remedies,  by  attachment 
or  other  process,  against  the  property  of  the  defendant,  which 
are  now  provided  by  the  laws  of  the  state  in  which  such  court 
is  held  for  the  courts  thereof;  and  such  circuit  or  district 
courts  may,  from  time  to  time,  by  general  rules,  adopt  such 
state  laws  as  may  be  in  force  in  the  states  where  they  are  held 
in  relation  to  attachments  and  other  process :  Provided,  That 
similar  preliminary  affidavits  or  proofs,  and  similar  security, 
as  required  by  such  state  laws,  shall  be  first  furnished  by  the 
party  seeking  such  attachment  or  other  remedy." 

But,  as  seen  in  a  previous  connection,  the  federal  courts  can- 
not issue  an  attachment  against  a  nonresident  when  he  is  not 


ib  Amy  v.  Watertown,  130  U.  S.  301,  9  Sup.  Ct.  530,  32  L.  Ed.  946. 

i«  BARROW  S.  S.  CO.  v.  KANE,  170  U.  S.  100,  18  Sup.  Ct.  526. 
42  L.  Ed.  964;  Conley  v.  Alkali  Works,  190  U.  S.  400,  23  Sup.  Ct. 
728,  47  L.  Ed.  1113;  Cady  v.  Associated  Colonies  (C.  C.)  119  Fed.  420. 

it  U.  S.  Comp.  St.  1901,  p.  6S4. 


§  141)  PROCEDURE    IN    COURTS    OF    LAW.  359 

found  in  the  district,  or  when  there  is  no  other  ground  of  juris- 
diction.18 

It  is  clear  from  the  language  of  the  above  section  that  this 
adopted  simply  the  attachment  laws  which  were  in  force  on 
June  1,  1872,  and  that  subsequent  attachment  laws  of  the 
states  are  not  adopted  unless  the  court  specially  provides  there- 
for by  general  rule ;  but  under  this  statute  and  section  914,  the 
general  state  practice  in  relation  to  attachments  is  adopted.1* 

SAME— APPEARANCES. 

140.  A«  to  the  effect  of  the  defendant's  appearance  the  federal 

courts  are  not  hound  to  follow  state  statutes  prescribing 
a  certain  result  as  flowing  from  the  entry  of  an  ap- 
pearance; as,  for  instance,  state  statutes  which  provide 
that  a  special  appearance  shall  have  the  effect  of  a  gen- 
eral appearance. 

As  the  practice  only  conforms  "as  near  as  may  be,"  the  fed- 
eral courts  have  a  discretion  to  disregard  this  provision  of  the 
state  court.20 

SAME— PARTIES   TO   COMMON-LAW   ACTIONS. 

141.  The  rules  as  to  parties  to  actions  are  substantially  sim- 

ilar to  those  prevailing  in  the  state  courts  of  the  local- 
ity, subject  to  certain  exceptions  incident  to  the  nature 
of  the  federal  courts  and  the  character  of  their  juris- 
diction. 

State  statutes  allowing  parties  in  real  interest  to  sue  in  their 
own  names  are  adopted  by  the  federal  courts,  subject,  always, 

is  EX  PARTE  DES  MOINES  &  M.  RT.  CO.,  103  U.  S.  794,  26  L. 
Ed.  461 ;   Central  Trust  Co.  v.  Railroad  Co.  (C.  C.)  68  Fed.  685. 

i8  Logan  v.  Goodwin,  104  Fed.  490,  43  C.  C.  A.  658;  Common- 
wealth Trust  Co.  v.  Frick  (C.  C.)  120  Fed.  688. 

«o  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct  44,  36 
L.  Ed.  942;  Mexican  Cent.  R.  Co.  v.  Pinkney,  149  U.  S.  194,  13  Sup. 
Ct.  859,  37  L.  Ed.  699. 


3G0  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  17 

to  the  proviso  that,  if  the  real  interest  which  they  attempt  to 
assert  is  an  equitable  interest,  they  cannot  sue  in  the  federal 
courts  in  their  own  names;  for,  as  seen  above,  equitable  titles 
cannot  be  asserted  in  the  federal  courts  on  the  law  side.21 

But  an  assignee  can  sue  in  his  own  name  where  the  state 
statute  allows  it  and  vests  him  with  the  legal  title.23 

Where  a  state  statute  allows  a  wife  to  sue  in  her  own  name 
for  damages  to  person  or  character,  the  federal  statute  allows 
her  also.28 

Where  there  is  an  improper  joinder  of  parties,  and  the  state 
statute  allows  the  improper  parties  to  be  stricken  out,  the  same 
practice  will  be  followed  by  the  federal  courts.2* 

SAME— PLEADING. 

142.  The  pleading  in  the  federal  courts  is  substantially  similar 
to  that  in  the  state  courts  of  the  locality. 
Amendments  are  liberally  allowed  in  case  of  formal  defects  in 
a  way  to  enable  the  courts  to  administer  justice  and 
render  decisions  according  to  the  very  right  of  the 
cause. 

The  forms  of  action  in  the  state  courts  on  the  common-law 
side  are  adopted  by  the  federal  courts.  In  fact,  this  was  the 
prime  object  of  the  passage  of  the  act  of  June  1,  1872,  so  as  to 
save  the  bar  the  necessity  of  having  to  learn  and  practice  two 
entirely  different  systems  of  pleading.25 

21  New  York  Continental  Jewall  Filtration  Co.  v.  Sullivan  (C.  C.) 
Ill  Fed.  179. 

22  Albany  &  R.  Iron  &  Steel  Co.  v.  Lundberg,  121  U.  S.  451,  7 
Sup.  Ct  958,  30  L.  Ed.  982;  Nederland  Life  Ins.  Co.  v.  Hall,  84 
Fed.  278,  27  C.  C.  A.  390. 

23  Morning  Journal  Ass'n  v.  Smith,  56  Fed.  141,  4  C.  C.  A.  8. 

24  Perry  v.  Insurance  Co.  (C.  C.)  11  Fed.  478;  Whitaker  v.  Pope, 
Fed.  Cas.  No.  17,528. 

2  5  INDIANAPOLIS  &  ST.  L.  R.  CO.  Y.  HORST,  93  U.  S.  291,  23 
L.  Ed.  898. 


§  142)  PROCEDURE    IN    COURTS    OF    LAW.  361 

Hence  the  state  rule  as  to  the  effect  of  a  general  issue,  and 
what  is  provable  under  it,  is  adopted  by  the  federal  courts.26 

Amendments. 

The  federal  courts  are  liberal  in  the  allowance  of  amend- 
ments.    Section  95-4  of  the  Revised  Statutes  2T  provides: 

"No  summons,  writ,  declaration,  return,  process,  judgment, 
or  other  proceedings  in  civil  causes,  in  any  court  of  the  United 
States,  shall  be  abated,  arrested,  quashed,  or  reversed  for  any 
defect  or  want  of  form ;  but  such  court  shall  proceed  and  give 
judgment  according  as  the  right  of  the  cause  and  matter  in 
law  shall  appear  to  it,  without  regarding  any  such  defect,  or 
want  of  form,  except  those  which,  in  cases  of  demurrer,  the 
party  demurring  specially  sets  down,  together  with  his  demur- 
rer, as  the  cause  thereof;  and  such  court  shall  amend  every 
such  defect  and  want  of  form,  other  than  those  which  the 
party  demurring  so  expresses ;  and  may  at  any  time  permit 
either  of  the  parties  to  amend  any  defect  in  the  process  or 
pleadings,  upon  such  conditions  as  it  shall,  in  its  discretion 
and  by  its  rules,  prescribe." 

It  not  only  acts  under  this  section  in  liberally  allowing 
amendments,  but  it  also  adopts  the  practice  of  the  state  courts 
in  the  allowance  of  amendments  in  so  far  as  that  practice  does 
not  conflict  with  the  rights  given  by  the  above  section.  For 
instance,  where  the  state  practice  allows  it,  a  new  count  can 
be  added  to  the  declaration.28 

So,  too,  where  a  foreign  administrator  sues  in  the  federal 
courts  without  having  had  a  local  qualification,  he  can  qualify 
after  the  institution  of  the  suit,  and  then  amend,  setting  up  his 
local  qualification.29 


2«  Koberts  v.  Lewis,  144  U.  S.  653,  12  Sup.  Ct.  781,  36  L.  Ed.  579; 
DUSHANE  v.  BENEDICT,  120  U.  S.  630,  7  Sup.  Ct.  696,  30  L.  Ed. 
810;   Burley  v.  Bank,  111  U.  S.  216,  4  Sup.  Ct.  341,  28  L.  Ed.  406. 

27  U.  S.  Comp.  St.  1901,  p.  696. 

2  8  WEST  v.  SMITH,  101  U.  S.  263,  25  L.  Ed.  809. 

29  Hodges  v.  Kimball,  91  Fed.  845,  34  C.  C.  A.  103. 


302  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  17 

A  widow  who  sues  as  administrator  can  amend  by  bringing 
the  suit  in  her  own  right.80 

An  amendment  of  the  declaration  may  be  made  during  the 
trial  in  order  to  avoid  a  variance.31 

Under  section  954  an  amendment  can  be  made  in  the  federal 
courts  even  after  judgment,  and  in  as  vital  a  matter  as  the 
allegation  of  citizenship.32 

In  fact,  whatever  the  state  practice  may  be  as  to  amend- 
ments, it  cannot  restrict  the  right  of  the  federal  courts  under 
section  954,  but  that  section  governs  in  case  of  conflict  or  dif- 
ference of  practice.3* 

SAME— CONTINUANCES. 

143.  In  the  matter  of  continuances  the  federal  conrts  follow 

their  own  rules,  and  are  not  affected  by  the  state  law 
or  practice,  as  continuances  are  not  considered  to  come 
within  the  purview  of  section  914.34 

The  granting  or  refusing  of  a  continuance  in  a  federal  court 
is  a  matter  of  discretion  with  the  judge.86 

SAME— TRIAL. 

144.  The  making  up  of  the  jury  in  the  federal  courts  is  largely 

under  the  court's  control,  and  it  may  adopt  the  state 
practice  or  not,  as  it  thinks  fit. 8  6 
The  federal  conrts  have  their  own  procedure  in  reference  to 
the  question  of  trying  cases  without  a  jury.  The  trial 
may  be  without  a  jury  when  the  jury  is  waived  in  writ- 
ing. 

so  Van  Doren  v.  Railroad  Co.,  93  Fed.  260,  35  C.  C.  A.  282. 
si  Bamberger  v.  Terry,  103  U.  S.  40,  26  L.  Ed.  317. 
sz  Mexican  Cent.  Ry.  Co.  v.  Duthie,  189  U.  S.  76,  23  Sup.  Ct.  610, 
47  L.  Ed.  715. 

83  Lange  v.  Railroad  Co.  (C.  C.  A.)  126  Fed.  338. 

84  Texas  &  P.  R.  Co.  v.  Nelson,  50  Fed.  814,  1  C.  0.  A.  688. 

3b  Fidelity  &  Deposit  Co.  v.  Lumber  Co.,  189  U.  S.  135,  23  Sup. 
Ct.    582,  47  L.  Ed.  744. 

36  Pointer  v.  U.  S.,  151  U.  S.  396,  14  Sup.  Ct.  410,  38  L.  Ed.  208. 


§  144)  PROCEDURE    IN    COURTS    OF    LAW.  363 

Section  649  of  the  Revised  Statutes  8T  provides : 
"Issues  of  fact  in  civil  cases  in  any  circuit  court  may  be 
tried,  and  determined  by  the  court,  without  the  intervention 
of  a  jury,  whenever  the  parties,  or  their  attorneys  of  record, 
file  with  the  clerk  a  stipulation  in  writing  waiving  a  jury.  The 
finding  of  the  court  upon  the  facts,  which  may  be  either  gen- 
eral or  special,  shall  have  the  same  effect  as  the  verdict  of  a 
jury." 

And  section  700  of  the  Revised  Statutes  88  provides: 
"When  an  issue  of  fact  in  any  civil  cause  in  a  circuit  court 
is  tried  and  determined  by  the  court  without  the  intervention 
of  a  jury,  according  to  section  six  hundred  and  forty-nine,  the 
rulings  of  the  court  in  the  progress  of  the  trial  of  the  cause, 
if  excepted  to  at  the  time,' and  duly  presented  by  a  bill  of  ex- 
ceptions, may  be  reviewed  by  the  Supreme  Court  upon  a  writ 
of  error  or  upon  appeal ;  and  when  the  finding  is  special  the 
review  may  extend  to  the  determination  of  the  sufficiency  of 
the  facts  found  to  support  the  judgment." 

These  provisions  in  terms  apply  to  the  circuit  court  only, 
so  that  in  common-law  trials  in  the  district  court  it  is  a  matter 
of  doubt  whether  a  jury  can  be  waived.38 

It  is  not  a  matter  of  doubt,  however,  that  the  provisions  of 
these  statutes  must  be  rigidly  followed.  It  is  not  sufficient 
for  the  record  simply  to  state  that  a  jury  was  waived,  but  it 
must  appear  either  by  recitals  in  the  record  or  by  the  filing  of 
the  paper  that  there  was  filed  a  stipulation  in  writing  waiving 
a  jury.  Before  the  act  was  passed  which  is  now  embodied 
in  section  649,  the  court  had  decided  that,  where  the  parties 
submitted  the  whole  case  to  the  judge,  he  acted  not  as  judge, 
but  practically  as  arbitrator,  and  there  could  be  no  review  of 
his  decision.*0 

On  similar  reasoning,  if  the  waiver  is  not  in  accordance  with 

si  u.  S.  Comp.  St.  1901,  p.  525. 

ss  U.  S.  Comp.  St.  1901,  p.  570. 

3»  Howard  v.  Croropton,  Fed.  Cas.  No.  6,758. 

40  Campbell  v.  Bayneau,  21  How.  223,  16  L.  Ed.  96. 


SG4  PROCEDURE — ORIGINAL   JURISDICTION.  (Cll.  17 

the  statute,  the  same  principle  would  apply,  and  parties  who 
are  not  particular  about  this  may  find,  when  they  try  to  reach 
the  appellate  court;  that  they  have  unconsciously  submitted 
their  case  to  arbitration,  and  that  the  court  of  appeals  will 
not  review  the  decision  of  the  judge  sitting  without  a  jury, 
unless  the  record  clearly  shows  that  there  was  a  stipulation  in 
writing  waiving  a  jury.41 

And  even  where  there  is  such  a  stipulation  the  appellate  court 
can  only  consider  such  errors  as  are  excepted  to  at  the  time.42 

In  respect  to  this  the  federal  courts  are  not  affected  by  state 
statutes.  As  the  trial  must  be  by  jury  unless  waived,  a  state 
statute  allowing  a  reference  of  a  common-law  case  to  auditors 
or  referees  will  not  be  followed  by  the  federal  courts.48 

SAME— SAME— EVIDENCE. 

145.  The  evidence  in  the  federal  courts  is  taken  in  a  manner 
similar  to  that  prevailing  in  the  state  courts,  except 
that  the  federal  courts  have  certain  rules  of  their  own 
relating  to  the  taking  of  depositions. 

In  common-law  cases  it  is  provided  by  section  861  of  the 
Revised  Statutes  44  that  the  mode  of  proof  in  the  trial  of  an 
action  at  common  law  shall  be  by  oral  testimony  and  examina- 
tion of  witnesses  in  open  court  except  as  hereinafter  provided. 
The  cases  "hereinafter  provided"  are  those  sections  providing 
for  the  taking  of  depositions  de  bene  esse,  or  the  issuing  of 
commissions. 

An  important  statute  in  reference  to  the  taking  of  deposi- 
tions is  the  act  of  March  9,  1892.45     It  provides : 

"That  in  addition  to  the  mode  of  taking  the  depositions  of 

4i  BOND  v.  DUSTIN,  112  U.  S.  604,  5  Sup.  Ct.  296,  28  L.  Ed.  835. 

42  McCREA  v.  PARSONS,  112"  Fed.  917,  50  C.  C.  A.  612;  Wilson 
v.  Trust  Co.,  183  U.  S.  121,  22  Sup.  Ct.  55,  46  L.  Ed.  113. 

43  Sulzer  v.  Watson  (C.  C.)  39  Fed.  414. 

44  U.  S.  Comp.  St.  1901,  p.  661. 
4  6  U.  S.  Comp.  St.  1901,  p.  664. 


§  145)  PROCEDURE    IN    COURTS    OF    LAW.  365 

witnesses  in  causes  pending  at  law  or  equity  in  the  district 
and  circuit  courts  of  the  United  States,  it  shall  be  lawful  to 
take  the  depositions  or  testimony  of  witnesses  in  the  mode 
prescribed  by  the  laws  of  the  state  in  which  the  courts  are 
held." 

There  is  some  conflict  of  decision  on  the  subject  as  to  the 
scope  of  this  act.  In  the  New  York  circuit  it  has  been  held  that 
this  act  authorizes  the  adoption  of  state  statutes  allowing  the 
examination  of  the  parties  to  the  cause  before  the  actual  trial.46 

On  the  other  hand,  the  preponderance  of  authority,  and  the 
better  authority,  is  that  this  statute  was  simply  intended  to 
cover  the  method  of  taking  the  deposition,  and  not  to  give 
any  right  to  compel  taking  depositions  under  a  state  statute, 
which  did  not  exist  before,  so  that  state  statutes  permitting 
the  examination  of  parties  before  the  trial  are  not  applicable 
to  the  federal  courts.  These  decisions  certainly  seem  to  ac- 
cord best  with  the  language  of  the  act.47  And  the  recent  de- 
cision of  the  Supreme  Court  in  Hanks  Dental  Ass'n  v.  Inter- 
national Tooth  Crown  Co.48  settles  this  as  the  law. 

Where,  however,  a  state  statute  authorizes  a  surgical  exam- 
ination, the  federal  courts  will  act  under  it;  but  the  right  to 
do  this  is  based  upon  section  721,  adopting  the  laws  of  the 
states  as  rules  of  decision  in  trials  at  common  law,  and  is  not 
based  upon  the  theory  that  such  a  statute  is  at  all  a  statute 
relating  to  evidence.49 

46  International  Tooth-Crown  Co.  v.  Association  (C.  C.)  101  Fed. 
306,  overruled  Hanks  Dental  Ass'n  v.  International  Tooth-Crown  Co., 
194  U.  S.  303,  24  Sup.  Ct.  700,  48  L.  Ed.  989. 

47  Despeaux  v.  Railroad  Co.  (C.  C.)  81  Fed.  897;  National  Cash 
Register  Co.  v.  Leland  (C.  C.)  77  Fed.  242. 

4  8  194  U.  S.  303,  24  Sup.  Ct.  700,  48  L.  Ed.  989. 
49  Camden  &  S.  R.  Co.  v.  Stetson,  177  U.  S.  172,  20  Sup.  Ct  617, 
44  L.  Ed.  721. 


366  PROCEDURE ORIGINAL   JURISDICTION.  (Ch.  17 


SAME— SAME— INSTRUCTIONS  TO  JURY. 

146.  In  instructing  a  jnry  the  federal  conrts  are  not  bonnd  by 
the  state  practice,  bnt  follow  their  own  rules,  regard- 
less of  state  legislation  to  the  contrary. 

A  federal  judge  has  full  power  to  charge  a  jury. 

A  federal  judge  may  direct  a  verdict  where  the  facts  are  un- 
disputed, or  the  preponderance  of  evidence  is  so  strong 
that  reasonable  men  should  not  differ  as  to  the  deduc- 
tions to  be  drawn  from  it;  and  this  may  be  done  at  the 
close  of  the  plaintiff's  evidence  or  at  the  close  of  the 
whole  evidence,  and  in  exceptional  cases  at  the  close  of 
the   opening   statement. 

In  their  manner  of  instructing  or  charging  the  jury  the  fed- 
eral courts  have  blazed  out  their  own  path,  and  are  not  at  all 
governed  by  the  state  practice  or  statutes  on  the  subject. 
Even  a  requirement  of  a  state  Constitution  forbidding  any 
charges  to  the  jury  as  to  matters  of  fact  does  not  affect  the 
federal  courts ;  B0  nor  does  any  other  state  practice  or  statute 
on  the  subject.61 

Perhaps  the  most  radical  difference  between  the  practice  of 
the  state  courts  and  the  federal  court  is  along  this  line.  In 
many  state  courts  (especially  in  Virginia)  the  powers  of  the 
judge  are  restricted,  so  that  he  becomes  hardly  more  than  the 
moderator  at  a  meeting.  He  cannot  express  the  slightest  opin- 
ion on  questions  of  evidence,  and  in  many  states  cannot  give 
any  instruction  or  charge  to  the  jury  unless  it  be  reduced  to 
writing.  This  is  not  the  practice  of  the  federal  courts,  and 
it  has  been  repeatedly  decided  that  section  914,  adopting  the 
state  practice,  does  not  apply  to  this  question.  The  judges 
in  the  federal  courts  have  the  right  to  comment  on  the  evi- 
dence, and  to  discuss  even  its  weight  and  credibility,  provided 

bo  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Vickers,  122  TJ.  S.  360,  7  Sup. 
Ct.  1210,  30  L.  Ed.  1161. 

53  CITY  OF  LINCOLN  v.  POWER,  151  U.  S.  430,  14  Sup.  Ct.  3S7, 
38  L.  Ed.  224. 


§  146)  PROCEDURE    IN    COURTS    OF    LAW.  307 

only  they  let  the  jury  understand  that  the  final  decision  on  aH 
questions  of  fact  is  with  them.62 

Motion  to  Direct  Verdict. 

It  is  the  constant  practice  of  the  federal  courts  to  direct  a 
verdict.  The  circumstances  under  which  they  can  direct  it 
are  carefully  guarded,  and  they  cannot  do  so  when  the  evi- 
dence is  conflicting.53 

But  where  the  facts  are  undisputed,  or  the  preponderance 
is  so  great  that  the  evidence  practically  becomes  conclusive, 
and  no  reasonable  men  could  differ  as  to  the  deductions  to  be 
drawn  from  it,  then  they  can  direct  a  verdict.54 

In  the  Virginia  practice,  which  probably  is  similar  to  that 
of  many  states,  such  a  thing  as  directing  a  verdict  is  unheard 
of.  The  only  method  of  taking  advantage  of  the  failure  of 
the  plaintiff  to  prove  his  case  is  by  demurrer  to  evidence,  with 
all  its  attendant  risks.  The  practice  of  the  federal  courts 
attains  the  same  object,  and  still  leaves  the  party  who  requests 
a  direction  of  a  verdict  free  to  go  before  the  jury  in  case  the 
court  should  refuse.  If  the  evidence  is  such  that  the  court 
would  be  bound  to  set  aside  a  verdict  in  case  one  was  rendered, 
then  a  federal  court  will  save  the  litigants  and  itself  the  delays 
of  a  long  trial,  and  will  direct  the  jury  to  bring  in  a  verdict.55 

Time  for  Motion. 

Motions  to  direct  a  verdict  in  the  federal  courts  may  be  made 
at  any  one  of  several  stages.  If  the  opening  statement  of 
counsel  for  the  plaintiff  states  the  evidence  on  which  he  expects 
to  rely  and  in  so  doing  shows  that  on  such  evidence  he  cannot 
recover,  the  court  may,  at  the  close  of  his  statement,  without 

62  Simmons  v.  U.  S.,  142  TJ.  S.  148,  12  Sup.  Ct.  171,  35  L.  Ed.  90S; 
Vicksburg  &  M.  R.  Co.  v.  Putnam,  118  U.  S.  545,  7  Sup.  Ct.  1.  30  L. 
Ed.  257;  CITY  OF  LINCOLN  V.  POWER,  151  U.  S.  43G,  14  Sup.  Ct. 
387,  38  L.  Ed.  224;   Freese  v.  Kemplay.  118  Fed.  428,  55  C.  C.  A.  258. 

88  White  v.  Van  Horn,  159  U.  S.  3,  15  Sup.  Ct.  1027,  40  L.  Ed.  55. 

54  Southern  Pac.  Co.  v.  Pool,  160  U.  S.  438,  16  Sup.  Ct.  338,  40  L. 
Ed.  485. 

55  Sansom  v.  Railway  Co.,  Ill  Fed.  SS7,  50  C.  C.  A.  53. 


3G8  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  17 

going  into  any  evidence  at  all,  direct  the  jury  to  bring  in  a 
verdict,  for  the  reason  that  it  would  be  an  idle  ceremony  and 
a  great  waste  of  time  to  allow  a  trial  to  proceed  when  it  is  a 
foregone  conclusion  that  any  verdict  would  have  to  be  set 
aside.56 

If,  however,  the  defendant  does  not  care  to  make  this  mo- 
tion at  that  time,  or  if  he  makes  it  then,  and  fails,  he  can  renew 
the  motion  at  the  end  of  the  plaintiff's  evidence.     If  the  motion 
is  sustained,  that  ends  the  case  in  his  favor ;   if  the  motion  is 
overruled,  he  has  the  choice  of  two  methods:     He  may  take 
an  exception  to  the  action  of  the  court  in  overruling  his  mo- 
tion, and  submit  no  evidence,  and  go  to  the  appellate  court  on 
the  theory  that  the  plaintiff's  own  evidence  has  failed  to  make 
out  a  case,  and  seek  for  a  reversal  on  that  ground.     If  he 
considers  this  step  too  dangerous,  he  can  then  put  on  his  own 
evidence,  but  when  he  does  so  he  waives  the  benefit  of  any 
exception  that  he  may  have  taken  to  the  action  of  the  court 
in  refusing  to  direct  a  verdict  at  the  end  of  the  plaintiff's  evi- 
dence, for  it  may  very  well  be  that,  even  though  the  plaintiff's 
evidence  was  not  sufficient  to  sustain  a  verdict,  the  defendant's 
may  have  supplemented  it;    and  hence  putting  on  evidence 
after  the  overruling  of  a  motion  to  direct  at  the  close  of  the 
plaintiff's  evidence  is  held  to  be  a  waiver  of  such  an  excep- 
tion.    He  can,  however,  give  up  the  benefit  of  his  assignment 
of  error  for  failure  to  instruct  at  the  close  of  the  plaintiff's 
evidence  and  still  renew  his  motion  to  the  court  to  direct  a 
verdict  at  the  close  of  all  the  evidence  in  the  case;    and,  in 
case  this  motion  is  overruled,  he  can  take  an  exception  to  the 
action  of  the  court  and  embody  all  the  evidence  in  the  bill  of 
exceptions,  on  the  theory  that  neither  the  plaintiff's  nor  de- 
fendant's evidence,  nor  both  combined,  are  sufficient  to  sustain 
a  verdict.     The  right  to  take  these  different  steps  is  fully  estab- 
lished by  the  authorities.57 

co  Oscanyan  v.  Arms  Co.,  103  U.  S.  261,  26  L.  Ed.  539. 

67  Robertson  v.  Perkins,  129  U.  S.  233,  9  Sup.  Ct.  279,  32  L.  Ed. 
686;  UNION  PAC.  R.  CO.  v.  CALLAGHAN,  161  U.  S.  91,  16  Sup. 
Ct.  493,  40  L.  Ed.  628;    Sigafus  v.  Porter,  179  U.  S.  116,  21  Sup.  Ct 


147)  PROCEDURE    IN    COURTS    OF    LAW.  369 


SAME— SAME— BILL  OF  EXCEPTIONS. 

147.    The  bill  of  exceptions  is  the  method  of  incorporating  into 

the  record  errors  of  law  not  otherwise  appearing  in  the 

record. 
Tn  the  form  and  other  procedure  relating  to  such  bills  the 

federal  courts  have  their  own  rules,  and  do  not  regard 

the  state  practice. 
The   bill   of   exceptions   must  be   formally   written   out   and 

signed  by  the  judge,  but  it  need  not  be  under  seal. 
The  exception  must  be  noted  at  the  time  the  ruling  objected 

to  is  made,  and  the  bill  of  exceptions  perfected  during 

the  term. 
The  exception  must  be  specific,  and  taken  as  to  the  precise 

point   objected   to,    and   a   separate    exception   must   be 

taken  to  each  objectionable  ruling. 

The  section  of  the  Revised  Statutes  as  amended  in  1900. 
allowing  bills  of  exception,  has  been  set  out  in  a  previous  con- 
nection.58 

In  order  to  constitute  bills  of  exception,  they  must  be  form- 
ally written  out  and  signed.  Mere  minutes  or  memoranda 
of  notations  of  exceptions  are  not  bills  of  exceptions  in  the 
sense  of  this  statute.59 

The  bill  must  be  signed  by  the  judge  who  presided  at  the 
trial,  but  it  need  not  be  under  seal.60 

The  last  amendment  allows  another  judge  besides  the  judge 
who  presided  to  sign  the  bill  of  exceptions  in  case  of  the  sick- 
ness or  disability  of  the  judge  who  actually  did  preside.  This, 
however,  only  applies  to  cases  of  actual  disability,  not  to  cases 
of  mere  absence  from  the  district.61 

34,  45  L.  Ed.  113;    McCRBA  v.  PARSONS,  112  Fed.  917,  50  C.  C.  A. 
012. 

ss  Ante,  p.  55. 

so  Hanna  v.  Maas,  122  U.  S.  24,  7  Sup.  Ct.  1055,  30  L.  Ed.  1117. 

eo  Genere's  v.  Campbell,  11  Wall.  193,  20  L.  Ed.  110;  Malony  v. 
Adsit,  175  U.  S.  281,  20  Sup.  Ct.  115,  44  L.  Ed.  163. 

si  Western  Dredging  &  Improvement  Co.  v.  Heldmaier,  111  Fed. 
123,  49  C.  C.  A.  264. 

Hughes  Fed.Jub. — 24 


370  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  17 

In  order  to  avail  of  a  bill  of  exceptions  to  errors  in  ruling, 
the  exception  must  be  noted  at  the  time  the  ruling  is  made, 
so  as  to  give  the  judge  the  opportunity  of  correcting  it  if  pos- 
sible. If  noted  at  that  time,  it  may  be  actually  written  out 
and  signed  any  time  during  the  term.62 

If  an  agreement  is  made  to  that  effect  during  the  term,  it 
may  even  be  signed  after  the  term.83 

The  trial  judge  may  be  compelled  to  sign  a  bill  of  exceptions 
by  mandamus,  provided,  of  course,  it  is  a  proper  bill.64 

In  the  form  and  other  procedure  relating  to  bills  of  excep- 
tion the  federal  courts  also  have  their  own  rules  of  action, 
and  do  not  regard  the  state  practice.66 

The  method  of  taking  exceptions  to  instructions  varies 
greatly  in  the  federal  courts  and  many  of  the  state  courts. 
Certainly  the  difference  between  the  federal  practice  and  the 
practice  in  the  state  of  Virginia  is  very  great.  Where  the 
judge  charges  the  jury,  an  exception  will  fall  if  it  is  taken  to 
the  whole  charge,  unless  the  entire  charge  is  wrong.  It  is  the 
duty  of  the  exceptant  to  point  out  the  special  portions  of  the 
charge  which  he  considers  objectionable.  So,  too,  as  to  in- 
structions involving  more  than  one  proposition,  he  must  indi- 
cate the  special  parts  of  the  instruction  to  which  he  objects; 
otherwise  his  exception  will  fall.  And  he  must  take  a  separate 
exception  to  each  instruction,  or  to  each  error  of  law  involved 
in  the  instruction,  and  make  each  one  the  subject  of  a  separate 
assignment  of  error. 

These  rules  are  all  absolutely  essential  to  the  proper  matur- 
es HUNNICUTT  v.  PEYTON,  102  U.  S.  333,  26  L.  Ed.  113;  New 
York  &  N.  E.  R.  Co.  v.  Hyde,  56  Fed.  188,  5  C.  C.  A.  461. 

«a  Waldron  v.  Waldron,  156  U.  S.  361,  15  Sup.  Ct.  383,  39  L.  Ed. 
453. 

•*  EX  PARTE  CHATEAUGAY  ORE  &  IRON  CO.,  128  U.  S.  544, 
9  Sup.  Ct.  150,  32  L.  Ed.  508. 

•  »  EX  PARTE  CHATEAUGAY  ORE  &  IRON  CO.,  128  U.  S.  544, 
9  Sup.  Ct  150,  32  L.  Ed.  508. 


§  148)  procedure  in  courts  of  law.  371 

ing  of  a  common-law  case  in  the  federal  courts,  if  it  is  wished 
to  review  its  proceeding  in  an  appellate  court.68 

If  a  single  exception  is  taken  to  the  entire  charge,  and  there 
is  any  part  at  all  of  the  charge  right,  the  exception  falls.87 

On  the  other  hand,  if  a  series  of  instructions  is  asked,  and 
the  court  refuses  them,  and  a  bill  of  exceptions  is  taken  to  the 
action  of  the  court  in  refusing  them,  the  exception  falls  if  any 
one  of  those  instructions  is  wrong.88 

SAME— SAME— VERDICT. 

148.  The  federal  courts,  though  not  compelled  to  do  so,  con- 
form in  a  general  way  to  the  practice  of  the  state  courts 
in  relation  to  the  form  of,  and  rules  governing,  the  ver- 
dict; but  they  are  not  bound  by  state  statutes  requir- 
ing the  courts  to  submit  to  the  jury  special  questions  of 
fact,  and  requiring  the  jury  to  make  special  findings  in 
pursuance  of  such  submissions. 

As  to  the  mere  question  of  form,  the  federal  courts  follow 
the  state  court  practice.  So,  too,  where  the  state  courts  allow 
a  single  verdict  on  several  counts,  the  federal  courts  will  do 
the  same.88 

In  many  of  the  states  there  are  laws  requiring  the  courts  to 
submit  to  the  jury  special  questions  of  fact,  and  requiring  the 
jury  to  make  special  findings  in  pursuance  of  such  submissions. 
The  federal  courts  have  always  refused  to  be  bound  by  these 
statutes,  considering  that  the  control  and  handling  of  the  jury 
is  not  a  matter  of  practice,  pleading,  or  procedure  in  the  sense 
of  section  914  of  the  Revised  Statutes,  but  rather  as  a  matter 

6«THOM  v.  PITTARD,  62  Fed.  232,  10  C.  C.  A.  352;  South  Penn 
Oil  Co.  v.  Latshaw,  111  Fed.  598,  49  C.  C.  A.  478. 

67  Western  Assur.  Co.  v.  Polk,  104  Fed.  649,  44  C.  C.  A.  104. 

es  Illinois  Car  &  Equipment  Co.  v.  Wagon  Co.,  112  Fed.  737,  50 
C.  C.  A.  504. 

69  BOND  v.  DUSTIN,  112  U.  S.  604,  5  Sup.  Ct.  296,  28  L.  Ed.  S35; 
Illinois  Car  &  Equipment  Co.  v.  Wagon  Co.,  112  Fed.  737,  50  C.  C. 
A.  504;   Glenn  v.  Sumner,  132  U.  S.  152,  10  Sup.  Ct.  41,  33  L.  Ed.  301. 


372  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  17 

affecting  the  personal  conduct  and  discretion  of  the  judge,  in 
which  they  will  not  permit  state  statutes  to  bind  them.70 

The  federal  court  has  power  to  amend  a  verdict  in  matters 
of  form,  and  to  receive  a  sealed  verdict,  and  put  it  in  proper 
form,  when  the  parties  had  stipulated  that  the  jury  could  send 
in  their  verdict  sealed  during  a  recess.71 

SAME— MOTION  FOR  NEW  TRIAL. 

149.  The  federal  courts  follow  the  usual  practice  of  common- 
law  courts  in  regard  to  new  trials,  and  do  not  feel  bound 
in  this  respect  by  state  practice. 

Section  726  of  the  Revised  Statutes  72  provides  in  reference 
to  the  federal  courts :  "All  of  the  said  courts  shall  have  power 
to  grant  new  trials,  in  cases  where  there  has  been  a  trial  by 
jury,  for  reasons  for  which  new  trials  have  usually  been  granted 
in  the  courts  of  law."  Here  the  federal  courts  decline  to  fol- 
low the  state  court  practice,  considering  that  the  question  as 
to  granting  or  withholding  a  new  trial  is  not  a  question  of 
pleading,  practice,  or  procedure.78 

The  granting  or  refusing  of  a  new  trial  in  the  federal  courts 
is  a  matter  of  discretion,  and  cannot  be  the  subject  of  a  bill  of 
exceptions.74 

There  is  one  important  qualification  of  the  above  doctrine 
that  the  federal  courts  do  not  follow  the  state  court  practice 
in  reference  to  new  trials.     Some  states  have  laws  giving  a 

to  United  States  Mut.  Ace.  Ass'n  v.  Barry,  131  U.  S.  100,  9  Sup. 
Ct.  755,  33  L.  Ed.  60;  INDIANAPOLIS  &  ST.  L.  R.  CO.  v.  HORST, 
93  U.  S.  291,  23  L.  Ed.  898;  McElwee  v.  Lumber  Co.,  69  Fed.  302, 
16  C.  C.  A.  232. 

7i  Lincoln  Tp.  v.  Iron  Co.,  103  U.  S.  412,  26  L.  Ed.  518;  Koon  v. 
Insurance  Co.,  104  TJ.  S.  106,  26  L.  Ed.  670. 

72  U.  S.  Comp.  St.  1901,  p.  584. 

78  INDIANAPOLIS  &  ST.  L.  R.  CO.  v.  HORST,  93  U.  S.  291,  23 
L.  Ed.  898;  Fishburn  v.  Railroad  Co.,  137  U.  S.  60,  11  Sup.  Ct.  8, 
34  L.  Ed.  585;   Hugbey  v.  Sullivan  (C.  C.)  80  Fed.  72. 

7*  Newcomb  v.  Wood,  97  U.  S.  581,  24  L.  Ed.  1085. 


§  151)  PROCEDURE    IN    COURTS    OF    LAW.  373 

new  trial  as  an  absolute  matter  of  right  in  certain  classes  of 
cases,  mainly  involving  title  to  real  estate.  Where  such  a  law 
exists,  the  federal  courts  will  follow  it  in  cases  pending  on 
their  common-law  side,  and  will  grant  a  new  trial  under  these 
circumstances.76 


SAME— MOTION  IN  ARREST  OF  JUDGMENT. 

150.  The  practice  of  the  federal  courts  in  respect  to  motions 

in  arrest  of  judgment  corresponds  to  the  general  com- 
mon-law doctrine. 

A  motion  in  arrest  of  judgment  under  section  954,  which 
is  the  federal  statute  of  jeofails,  will  not  lie  for  a  variance,  nor 
on  account  of  mere  matters  of  fact,  nor  for  mere  defects  of 
form,  but  only  for  substantial  and  irremediable  defects  in  the 
cause  of  action.76 

SAME— JUDGMENT. 

151.  At  this  point,  as  far  as  questions  of  practice,  pleading,  or 

procedure  are  concerned,  section  914  of  the  Revised 
Statutes,  assimilating  the  federal  to  the  state  practice, 
no  longer  applies;  proceedings  subsequent  to  the  judg- 
ment being  the  dividing  line. 

While  the  federal  courts  will  follow  the  state  practice  as  to 
the  mere  form  of  the  judgment,  their  control  over  it  from 
that  time  forward  is  regulated  by  the  federal  decisions  and 
statutes,  and  not  by  the  state  practice.  They  may  correct  the 
record,  after  the  term,  in  mere  clerical  errors,  but  in  no  other 
way." 

tb  Smale  v.  Mitchell,  143  U.  S.  99,  12  Sup.  Ct.  353,  36  L.  Ed.  90. 

7«  Adams  v.  Shirk,  104  Fed.  54,  43  C.  C.  A.  407;  Id.,  117  Fed. 
801,  55  C.  C.  A.  25;  Peden  v.  Bridge  Co.  (C.  C.)  120  Fed.  523;  Ameri- 
can Bridge  Co.  v.  Peden  (C.  C.  A.)  129  Fed.  1004. 

7  7  City  of  Manning  v.  Insurance  Co.,  107  Fed.  52,  46  C.  C.  A   144. 


374  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  17 

Under  the  federal  practice  and  decisions  a  judgment  cannot 
be  set  aside  after  the  term  during  which  it  is  rendered,  even 
though  the  statute  of  the  state  may  provide  summary  remedies 
by  motion  for  the  purpose  of  regulating  judgments  in  its  own 
courts.78 

It  is  hard  to  reconcile  with  the  authorities  last  cited  the  case 
of  Travelers'  Protective  Ass'n  v.  Gilbert.79  There  the  court 
held  that  it  could  adopt  a  state  remedy  by  motion  for  the  re- 
opening of  a  judgment,  and  that,  when  such  a  right  existed 
in  the  state  practice,  it  took  away  from  the  federal  courts  their 
equitable  jurisdiction  for  the  reopening  or  setting  aside  of 
judgments.  Both  these  propositions  are  inconsistent  with  the 
above  case  of  Bronson  v.  Schulten,  in  which  the  court  says 
that,  independent  of  these  state  statutes  allowing  the  correction 
of  judgments  by  motion,  the  power  to  regulate  judgments 
after  the  term  in  which  they  were  rendered  was  an  equitable 
power.  Nothing  is  better  settled  in  federal  law  than  the  doc- 
trine that  the  ancient  equitable  jurisdiction  possessed  by  the 
federal  courts  remains  with  them  despite  newer  remedies  given 
by  state  statutes.  The  states  cannot  defeat  the  federal  juris- 
diction in  equity  on  the  ground  that  an  adequate  remedy  exists 
at  law  by  legislation  prescribing  remedies  at  law,  even  though 
those  remedies  were  simpler  than  the  equitable  remedy.80 

The  state  law  is  not  only  inapplicable  on  questions  as  to  the 
method  of  setting  aside  judgments  by  the  court  which  ren- 
dered them,  but,  a  fortiori,  it  is  still  less  applicable  to  pro- 
ceedings for  the  review  of  a  judgment.81 

"BRONSON  v.  SCHULTEN,  104  U.  S.  410,  26  L.  Ed.  997;  City 
of  Manning  v.  Insurance  Co.,  107  Fed.  52,  46  C.  C.  A.  144;  Tubman 
v.  Railroad  Co.,  190  U.  S.  38,  23  Sup.  Ct.  777,  47  L.  Ed.  946;  Menge 
v.  Warriner,  120  Fed.  816,  57  C.  C.  A.  432. 

t»  111  Fed.  269,  49  C.  C.  A.  309,  55  L.  R.  A.  538. 

so  Post,  c.  18. 

si  West  v.  Cedar  Co.,  113  Fed.  737,  51  C.  C.  A.  411;  Friedly  T. 
Giddings  (C.  C.)  119  Fed.  438;  Giddings  v.  Freedley  (C.  C.  A.)  128 
Fed.  355. 


§  151)  PROCEDURE    IN    COURTS    OF    LAW.  375 

The  recent  act  of  August  1,  1888,82  provides  as  follows: 

"That  judgments  and  decrees  rendered  in  a  circuit  or  dis- 
trict court  of  the  United  States  within  any  state,  shall  be  liens 
on  property  throughout  such  state  in  the  same  manner  and  to 
the  same  extent  and  under  the  same  conditions  only  as  if  such 
judgments  and  decrees  had  been  rendered  by  a  court  of  gen- 
eral jurisdiction  of  such  state:  provided,  that  whenever  the 
laws  of  any  state  require  a  judgment  or  decree  of  a  state  court 
to  be  registered,  recorded,  docketed,  indexed,  or  any  other 
thing  to  be  done,  in  a  particular  manner,  or  in  a  certain  office 
or  county,  or  parish  in  the  state  of  Louisiana  before  a  lien 
shall  attach,  this  act  shall  be  applicable  therein  whenever  and 
only  whenever  the  laws  of  such  state  shall  authorize  the  judg- 
ments and  decrees  of  the  United  States  courts  to  be  registered, 
recorded,  docketed,  indexed,  or  otherwise  conformed  to  the 
rules  and  requirements  relating  to  the  judgments  and  decrees 
of  the  courts  of  the  state." 

Under  this  act  it  has  been  held  that,  in  case  the  state  where 
the  federal  court  sits  permits  or  requires  its  officers  to  docket 
federal  judgments,  a  judgment  of  the  federal  courts  is  not  a 
lien  on  lands  in  every  county  of  the  district,  but  is  only  a  lien 
in  the  special  county  where  the  court  is  sitting,  unless  it  is  also 
docketed  in  the  state  clerk's  office  of  the  other  counties.83 

A  judgment  in  the  federal  courts  is  not  a  lien  on  property 
of  the  debtor  fraudulently  conveyed  by  a  conveyance  good  as 
beween  the  debtor  and  the  fraudulent  grantee,  and  dated  pre- 
vious to  the  judgment.84 

The  authorities  bearing  on  the  lien  of  federal  judgments  are 
well  collated  in  the  footnote  to  Blair  v.  Ostrander.85 

«2  U.  S.  Comp.  St.  1901,  p.  701. 

8  3  Dartmouth  Sav.  Bank  v.  Bates  (C.  C.)  44  Fed.  546. 

84  Luhrs  v.  Hancock,  181  U.  S.  567,  21  Sup.  Ct.  726,  45  L.  Ed.  1005. 

86  47  L.  R.  A.  469. 


37G  PROCEDURE ORIGINAL   JURISDICTION.  (Ch.  17 

SAME— EXECUTION. 

152.  State  remedies  in  the  nature  of  execution  in  force  on 
June  1,  1872,  and  any  later  ones  adopted  by  rule  of 
court,  are  available  in  the  federal  courts  in  common- 
law  causes. 

In  reference  to  executions,  section  916  of  the  Revised  Stat- 
utes 86  provides: 

"The  party  recovering  a  judgment  in  any  common-law  cause 
in  any  circuit  or  district  court,  shall  be  entitled  to  similar  rem- 
edies upon  the  same,  by  execution  or  otherwise,  to  reach  the 
property  of  the  judgment  debtor,  as  are  now  provided  in  like 
causes  by  the  laws  of  the  state  in  which  such  court  is  held,  or 
by  any  such  laws  hereafter  enacted  which  may  be  adopted  by 
general  rules  of  such  circuit  or  district  court ;  and  such  courts 
may,  from  time  to  time,  by  general  rules,  adopt  such  state 
laws  as  may  hereafter  be  in  force  in  such  state  in  relation  to 
remedies  upon  judgments,  as  aforesaid,  by  execution  or  other- 
wise." 

Under  this  statute  only  the  remedies  in  the  state  court  in 
the  nature  of  an  execution  which  were  in  existence  when  that 
statute  was  passed — that  is,  on  June  1,  1872 — are  available  in 
the  federal  courts,  unless  the  federal  court  has  by  rule  adopted 
subsequent  state  legislation  on  the  subject.87 

Under  section  985  of  the  Revised  Statutes  88  executions  of 
the  federal  court  may  run  into  another  district  of  the  same 
state.  Under  section  987  89  the  court  has  power  to  grant  a 
stay  of  execution  for  certain  purposes.80 


se  U.  S.  Comp.  St.  1901,  p.  6S4. 

a?  Canal  &  C.  Sts.  R.  Co.  v.  Hart,  114  U.  S.  654,  5  Sup.  Ct.  1127, 
29  L.  Ed.  226;  Lamaster  v.  Keeler,  123  U.  S.  376,  8  Sup.  Ct.  197,  31 
L.  Ed.  238. 

*•  U.  S.  Comp.  St.  1901,  p.  707. 

sa  U.  S.  Comp.  St.  1901,  p.  708. 

»o  Eaton  v.  Railroad  Co.  (C.  C.)  41  Fed.  421. 


§  152)  PROCEDURE    IN    COURTS    OF    LAW.  377 

Section  990  of  the  Revised  Statutes91  provides  as  follows: 

"No  person  shall  be  imprisoned  for  debt  in  any  state,  on 
process  issuing  from  a  court  of  the  United  States,  where,  by 
the  laws  of  such  state,  imprisonment  for  debt  has  been  or  shall 
be  abolished.  And  all  modifications,  conditions  and  restric- 
tions upon  imprisonment  for  debt,  provided  by  the  laws  of  any 
state,  shall  be  applicable  to  the  process  issuing  from  the  courts 
of  the  United  States  to  be  executed  therein;  and  the  same 
course  of  proceedings  shall  be  adopted  therein  as  may  be 
adopted  in  the  courts  of  such  state."  92 

Under  section  993,93  any  appraisement  of  goods  taken  on  a 
writ  of  execution  which  is  required  by  the  state  laws  must  be 
followed  by  the  federal  courts.  The  federal  courts  also  have 
power  to  set  aside  sales  under  writs  of  execution.  Mere  inad- 
equacy of  price  alone  would  not  result  in  a  resale ;  but  where 
the  inadequacy  is  so  gross  as  to  shock  the  conscience,  and 
especially  where  unfair  and  questionable  methods  have  been 
resorted  to,  the  court  will  not  hesitate  to  set  the  sale  aside.94 

The  act  of  March  3,  1893,95  lays  down  important  rules  in 
reference  to  the  sale  of  property  under  orders  of  the  federal 
court.  It  can,  however,  be  best  discussed  in  connection  with 
the  chancery  procedure  of  the  federal  courts. 

si  U.  S.  Comp.  St.  1901,  p.  709. 

»2  In  re  Bergen,  2  Hughes,  513,  Fed.  Cas.  No.  1,338 ;  Stroheim  v. 
Deimel,  77  Fed.  802,  23  C.  C.  A.  467. 

ss  U.  S.  Comp.  St.  1901,  p.  709. 

84  SCHROEDER  v.  YOUNG,  161  U.  S.  334,  16  Sup.  Ct.  512,  40  L. 
Ed.  721. 

•6  U.  S.  Comp.  St.  1901,  p.  710. 


378  PROCEDURE ORIGINAL   JURISDICTION.  (Ch.  18 


CHAPTER  XVIII. 

PROCEDURE  IN  THE  ORDINARY  FEDERAL  COURTS  OF 

ORIGINAL  JURISDICTION  (Continued)— COURTS 

OF  EQUITY. 

153.  General  Limits  of  Equitable  Jurisdiction. 

154.  The  Equity  Procedure  in  the  Federal  Courts — How  Regulated. 

155.  Same — Pleading — General  Requisites  of  the  Bill. 

156.  Same — Same — Injunction  Bills. 

157.  Same — Same — Judges  Who  May  Issue  Injunctions. 

158.  Same — Same — Injunctions  to  State  Courts. 

159.  Same — The  Process. 

160.  Same— Defaults. 

161.  Same — The  Defense. 


GENERAL    LIMITS    OF   EQUITABLE    JURISDICTION. 

153.  The  general  limits  of  the  equitable  jurisdiction  of  the 
federal  courts  are  those  that  prevailed  in  the  High 
Court  of  Chancery  in  England  at  the  time  of  the  adop- 
tion of  the  Constitution  of  the  United  States. 

The  distinction  between  law  and  equity  in  the  federal  courts 
is  made  in  the  Constitution  itself,  and  naturally  the  jurisdic- 
tion in  equity  which  the  framers  of  the  Constitution  had  in 
mind  was  that  jurisdiction  as  it  prevailed  at  the  time  when  the 
Constitution  was  adopted.1 

It  is  practically  the  jurisdiction  of  the  High  Court  of  Chan- 
cery in  England  as  it  then  existed.2 

Section  723  of  the  Revised  Statutes  8  provides  as  follows : 

"Suits  in  equity  shall  not  be  sustained  in  either  of  the  courts 
of  the  United  States  in  any  case  where  a  plain,  adequate,  and 
complete  remedy  may  be  had  at  law." 

i  Vattier  v.  Hinde,  7  Pet.  252,  8  L.  Ed.  675. 

a  Ante,  p.  194.  «  U.  S.  Comp.  St  1901,  p.  583. 


§  153)      GENERAL  LIMITS   OP  EQUITABLE  JURISDICTION.        379 

This  section  is  declaratory  of  the  law  as  it  existed  at  the  time 
when  the  federal  Constitution  was  adopted.  It  is  measured  by 
the  subjects  over  which  courts  of  equity  had  jurisdiction  at 
that  time,  and,  as  state  courts  can  neither  enlarge  nor  diminish 
the  jurisdiction  of  the  federal  courts,  it  is  not  affected  by  the 
fact  that  under  subsequent  legislation  a  statutory  remedy  is 
given  which  is  as  good  as  the  equitable  remedy.  Such  legisla- 
tion does  not  narrow  the  jurisdiction  of  the  federal  courts  in 
equity.4 

Even  in  the  federal  courts  the  single  fact  that  there  is  a 
remedy  at  law  is  not  sufficient  to  oust  the  courts  of  their 
equitable  jurisdiction.  It  must  be  as  full,  adequate,  and  com- 
plete as  the  equitable  remedy.6 

But  while  the  state  statutes  cannot  enlarge  or  restrict  the 
equitable  jurisdiction  of  the  federal  courts  by  making  a  matter 
a  case  of  equity  cognizance  which  is  not  so  under  the  practice 
of  the  English  High  Court  of  Chancery,  the  federal  courts  can 
avail  of  any  new  remedy  in  the  nature  of  an  equitable  remedy 
given  for  the  enforcement  of  a  right  which  is  equitable  in  its 
nature.6 

An  equity  court  has  no  jurisdiction,  however,  to  give  a 
direct  decree  against  the  obligors  on  a  bond  given  for  release 
of  property  or  other  purposes  incidental  to  a  chancery  suit. 
It  leaves  the  parties  to  their  remedy  at  law.7 

*  Mississippi  Mills  ▼.  Cohn,  150  U.  S.  202,  14  Sup.  Ct.  75,  37  L.  Ed. 
1052. 

6  Arrowsmith  v.  Gleason,  129  U.  S.  86,  9  Sup.  Ct.  237,  32  L.  Ed. 
630;  Osborne  v.  Railroad  Co.,  147  U.  S.  248,  13  Sup.  Ct.  299,  37  L. 
Ed.  155. 

«  Holland  v.  Challen,  110  U.  S.  15,  3  Sup.  Ct.  495,  28  L.  Ed.  52. 

t  Bein  v.  Heath,  12  How.  168,  13  L.  Ed.  939;  Phillips  y.  Gilbert, 
101  U.  S.  721,  25  L.  Ed.  833. 


880  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  18 


THE  EQUITY  PROCEDURE  IN  THE  FEDERAL  COURTS— 
HOW  REGULATED. 

154.  Tlie  equity  procedure  of  the  federal  courts  is  independent 
of  that  in  the  state  courts.  The  federal  courts,  in  this 
branch  of  their  jurisdiction,  have  their  own  rules  and 
practice.  These  rules  are  in  accordance  with  the  prac- 
tice in  equity  that  prevailed  at  the  time  of  adoption 
of  the  federal  Constitution  as  modified  by  a  oode  of 
rules  laid  down  by  the  Supreme  Court  of  the  United 
States  under  authority  of  law,  together  with  certain 
rules  of  the  lower  federal  courts  regulating  details  of 
their  own  procedure. 

The  rules  of  procedure  are  prescribed  by  the  Supreme  Court 
under  authority  of  sections  913  and  917  of  the  Revised  Stat- 
utes,8 which  provide  as  follows: 

"The  forms  of  mesne  process  and  the  forms  and  modes  of 
proceeding  in  suits  of  equity  and  of  admiralty  and  maritime 
jurisdiction  in  the  circuit  and  district  courts  shall  be  according 
to  the  principles,  rules,  and  usages  which  belong  to  courts  of 
equity  and  of  admiralty,  respectively,  except  when  it  is  other- 
wise provided  by  statute  or  by  rules  of  court  made  in  pursuance 
thereof;  but  the  same  shall  be  subject  to  alteration  and  addi- 
tion by  the  said  courts,  respectively,  and  to  regulation  by  the 
Supreme  Court,  by  rules  prescribed,  from  time  to  time,  to  any 
circuit  or  district  court,  not  inconsistent  with  the  laws  of  the 
United  States." 

"The  Supreme  Court  shall  have  power  to  prescribe,  from 
time  to  time,  and  in  any  manner  not  inconsistent  with  any  law 
of  the  United  States,  the  forms  of  writs  and  other  process,  the 
modes  of  framing  and  filing  proceedings  and  pleadings,  of 
taking  and  obtaining  evidence,  of  obtaining  discovery,  of  pro- 
ceeding to  obtain  relief,  of  drawing  up,  entering,  and  enrolling 
decrees,  and  of  proceeding  before  trustees  appointed  by  the 
court,  and  generally  to  regulate  the  whole  practice,  to  be  used, 

«  U.  S.  Comp.  St.  1901,  pp.  683,  684. 


§  154)     EQUITY  PROCEDURE  IN  FEDERAL  COURTS.       381 

in   suits  in  equity  or  admiralty,  by  the  circuit  and   district 
courts." 

Under  authority  conferred  by  these  statutes  the  Supreme 
Court  at  its  February  term,  1822,  prescribed  thirty-three  rules 
to  regulate  the  equity  practice  of  the  federal  courts  of  first  juris- 
diction.9 Subsequent  thereto,  at  the  January  term,  1842,  these 
rules  were  much  enlarged,  and  were  increased  in  number  to 
ninety-two.10  They  constitute  a  model  code  of  procedure  for 
courts  of  equity,  and  are  worthy  of  the  closest  study. 

Under  section  918  the  lower  courts  can  also  prescribe  rules 
for  their  practice  not  inconsistent  with  the  above.  Of  the  rules 
prescribed  by  the  Supreme  Court  in  1842  ninety-one  are  still 
in  force,  though  some  of  them  have  been  amended.  Since  that 
time  three  others  have  been  added.  One  is  in  reference  to  giv- 
ing a  personal  decree  against  the  mortgagor  under  certain  cir- 
cumstances in  a  foreclosure  suit,  which  was  promulgated  at  the 
December  term,  1863. X1  Another  one  (rule  93)  gives  the  judge 
who  took  part  in  a  decision  granting  or  dissolving  an  injunc- 
tion a  certain  discretion  as  to  suspending  or  modifying  an  in- 
junction during  the  pendency  of  an  appeal.  It  was  promulgat- 
ed at  the  October  term,  1878.12  And  the  last  was  intended 
to  prevent  collusive  suits  by  stockholders  for  causes  of  action 
which  should  be  asserted  in  the  first  instance  by  the  directors 
or  managing  officers  of  a  corporation.  It  was  promulgated  at 
the  October  term,  1881. 18 

The  right  of  Congress  to  authorize  the  adoption  of  these 
rules  by  the  courts  has  been  upheld.14 

The  courts,  however,  can  only  regulate  procedure  under  this 
power ;  they  cannot,  under  the  guise  of  a  rule,  affect  the  juris- 
diction of  the  courts.15 

Under  rule  90  the  practice  of  the  federal  courts  in  cases  not 

»  7  Wheat,  xvii.  10  1  How.  xli.  xl  1  Wall.  v. 

12  97  U.  S.  vli.  is  104  U.  S.  ix. 

14  Wayman  v.  Southard,  10  Wheat.  1,  42,  6  L.  Ed.  253. 
is  The  St.  Lawrence,  1  Black,  522,  17  L.  Ed.  ISO;   Ex  parte  Phenix 
Ins.  Co.,  118  TJ.  S.  610,  7  Sup.  Ct.  25,  30  L.  Ed.  274. 


382  PROCEDURE ORIGINAL   JURISDICTION.  (Ch.  18 

covered  by  the  rules  is  "the  present  practice  of  the  High  Court 
of  Chancery  in  England."  Although,  as  has  been  seen  above, 
the  question  of  jurisdiction  in  equity  depends  upon  the  English 
jurisdiction  of  the  equity  courts,  as  it  was  at  the  time  of  the 
Constitution,  or  the  enactment  of  the  judiciary  act  immediately 
after  the  adoption  of  the  Constitution,  yet,  as  regards  ques- 
tions of  practice,  this  rule  means  to  adopt  the  practice  of  the 
High  Court  of  Chancery  as  it  existed  at  the  time  the  rules  were 
adopted.     That  was  in  1842.16 

In  the  case  of  Thomson  v.  Wooster  1T  the  Supreme  Court 
calls  attention  to  the  fact  that  the  best  exponent  of  the  English 
practice  is  the  edition  of  Daniel's  Chancery  Practice  issued  in 
the  year  1837.  It  also  recommends  Smith's  Chancery  Prac- 
tice as  valuable  for  the  same  purpose.  It  may  be  added  that 
the  first  edition  of  Story's  Equity  Pleading  was  published  about 
this  same  time,  and  is  specially  valuable  for  use  in  the  federal 
courts.  A  companion  work  to  this  is  Curtis'  Equity  Prece- 
dents. The  forms  therein  are  specially  valuable  to  the  chan- 
cery practitioner  in  the  federal  courts,  and  have  not  been  super- 
seded by  the  many  excellent  form  books  since  published  with 
a  special  view  to  their  use  in  the  federal  courts. 

SAME— PLEADING— GENERAL  REQUISITES  OF  THE  BELL. 

155.  The  ancient  form  of  bills  in  eqnity  has  been  much  sim- 
plified in  the  federal  equity  rules  by  authorizing  the 
omission  of  formal  averments  and  abbreviating  the 
method  of  stating  the  cause  of  action.  But  it  must 
show 

(a)  The  jurisdiction  of  the  court  as  a  federal  court. 

(b)  The  jurisdiction  of  the  court  as  an  equity  court. 

The  bill  must  be  signed  by  counsel  as  a  pledge  of  good  faith. 

"THOMSON  v.  WOOSTER,  114  U.  S.  104,  5  Sup.  Ct.  788,  29 
L.  Ed.  105;    Badger  v.  Badger,  Fed.  Cas.  No.  717. 

it  THOMSON  r.  WOOSTER,  114  U.  S.  104,  5  Sup.  Ct  788,  29 
L.  Ed.  105. 


§  155)  EQUITY    PROCEDURE    IN    FEDERAL    COURTS. 


383 


The  first  step  in  the  institution  of  an  equity  suit  in  the  fed- 
eral courts  is  the  filing  of  the  bill. 

Its  general  form  is  the  subject  of  several  of  the  equity  rules. 
Any  bill  in  equity  in  the  federal  courts  must,  independent  of 
its  special  character,  embody  two  essentials:  First,  it  must 
show  the  jurisdiction  of  the  court  as  a  federal  court ;  and  sec- 
ond, it  must  show  the  jurisdiction  of  the  court  as  an  equity 
court. 

Federal  Jurisdiction. 

The  allegations  necessary  to  show  its  jurisdiction  as  a  fed- 
eral court  have  been  discussed  in  connection  with  the  general 
jurisdiction  of  the  federal  courts,  to  which  reference  is  made.13 
It  must  show  in  general  the  citizenship  of  the  parties,  if  that 
is  the  ground  of  the  jurisdiction ;  the  federal  question  involved, 
if  that  is  the  ground  of  jurisdiction;  the  amount  involved,  if 
that  is  an  essential  element  of  jurisdiction;  and  the  residence. 
The  twentieth  equity  rule  is  intended  to  cover  this  point,  and 
provides  as  follows : 

"Every  bill,  in  the  introductory  part  thereof,  shall  contain 
the  names,  places  of  abode,  and  citizenship  of  all  the  parties, 
plaintiffs  and  defendants,  by  and  against  whom  the  bill  is 
brought.  The  form,  in  substance,  shall  be  as  follows:  'To 
the  judges  of  the  Circuit  Court  of  the  United  States  for  the 

district  of  :     A.  B.,  of  ,  and  a  citizen  of  the 

State  of  ,  brings  this  his  bill  against  C.  D.,  of  , 

and  a  citizen  of  the  State  of ,  and  E.  F.,  of ,  and 

a  citizen  of  the  State  of  .     And  thereupon  your  orator 

complains  and  says  that,'  etc." 

Equity  Jurisdiction. 

In  showing  the  jurisdiction  of  the  court  as  an  equity  court, 
the  general  rules  of  chancery  pleading  and  practice  apply ;  but 
they  are  beyond  the  range  of  this  treatise.  It  was  once  said 
that  a  bill  in  chancery  contained  a  story  thrice  told.     Under 

i*Ante,  p.  189  et  seq. 


384  PROCEDURE ORIGINAL   JURISDICTION.  (Ch.  18 

the  equity  rules,  however,  many  of  the  allegations  customary 
in  the  old  English  bills  in  chancery  may  be  omitted,  though  they 
are  still  frequently  inserted,  apparently  for  no  other  reason 
than  that  lawyers,  when  they  prepare  bills,  follow  blindly  the 
old  form  books. 

Under  equity  rule  21,  for  instance,  it  is  not  necessary  to  in- 
sert the  common  confederacy  clause  averring  a  confederacy 
between  the  defendants  to  injure  the  plaintiff ;  nor  the  char- 
ging part  intended  to  anticipate  the  defense  of  the  defendant ; 
nor  the  jurisdiction  clause,  alleging  that  the  defendant  is  with- 
out remedy  at  law.  The  bill  should,  however,  ask  the  special 
relief  desired,  and  contain  a  prayer  for  general  relief.  Under 
the  latter  prayer  any  relief  may  be  granted  consistent  with  the 
facts  stated,  although  it  is  not  specially  prayed  for.1* 

Parties. 

On  account  of  the  constant  inconvenience  experienced  in  the 
federal  courts  from  inability  to  make  the  proper  parties,  it  is 
provided  by  rule  22  that,  in  case  persons  appearing  to  be  proper 
or  necessary  are  not  made  parties,  the  bill  must  show  that  they 
are  out  of  the  jurisdiction,  or  cannot  be  joined  without  ousting 
the  jurisdiction.  It  has  been  shown  in  a  previous  connection 
that  this  does  not  authorize  a  bill  where  the  parties  omitted 
from  it  are  so  essential  that  no  proper  decree  can  be  made  in 
their  absence.20 

Under  rule  23  it  is  required  that  the  prayer  for  process  shall 
contain  the  names  of  all  the  defendants  named  in  the  introduc- 
tory part  of  the  bill,  and,  if  any  are  under  disability,  that  this 
fact  shall  be  shown.  But  if  the  names  of  the  parties  against 
whom  process  is  prayed  appear  not  merely  in  the  introduc- 
tory part  of  the  bill,  but  also  in  the  body  of  it,  the  omission  of 
the  prayer  for  process  is  not  fatal.21 

i»  Hobson  v.  McArthur,  16  Pet.  182,  10  L.  Ed.  930;   Tyler  v.  Sav- 
age, 143  U.  S.  79,  12  Sup.  Ct.  340,  36  L.  Ed.  82. 
20  Ante,  p.  220  et  seq. 
2i  Jennes  v.  Lanues  (C.  C.)  84  Fed.  73. 


§  155)     EQUITY  PROCEDURE  IN  FEDERAL  COURTS.       385 

Signature  of  Counsel. 

Under  rule  24  every  bill  shall  contain  the  signature  of  coun- 
sel annexed  to  it,  which  shall  be  considered  as  an  affirmation 
on  his  part  that,  upon  the  instructions  given  him,  and  the  case 
laid  before  him,  there  is  good  ground  for  the  suit  in  the  man- 
ner in  which  it  is  framed.  This  signature  of  counsel  is  intended 
as  a  pledge  of  good  faith.  A  bill  which  does  not  contain  it 
is  demurrable,  although  an  indorsement  by  counsel  will  be  treat- 
ed as  a  signature.22 

A  bill  which  is  not  signed  by  counsel  will  be  ordered  off  the 
rolls,  but  if  it  is  signed  the  court  will  permit  it  to  be  restored 
to  the  rolls,  though  in  that  case  it  is  practically  a  new  bill,  and 
does  not  relate  back  to  the  time  of  its  first  filing.28 

Impertinent  Matter. 

Rule  26  provides  that  a  bill  be  expressed  briefly  and  suc- 
cinctly, without  unnecessary  recitals  of  documents,  and  with- 
out any  impertinent  or  scandalous  matter.  It  is  an  inherent 
power  of  courts  of  equity  to  protect  their  own  records,  and  to 
guard  litigants  from  unnecessary  and  irrelevant  attacks. 
Hence  a  bill  which  is  rambling  and  prolix  may  be  ordered  off 
the  files.  If  it  contains  any  scandalous  or  impertinent  matter, 
the  court  will  act  all  the  more  quickly;  and  under  this  rule 
it  can  in  such  case  either  act  itself,  or  refer  it  to  a  master  to  re- 
port whether  it  is  scandalous  or  impertinent  under  the  circum- 
stances.24 

Interrogatories. 

The  bill  may  contain  interrogatories  to  the  defendant,  and 
under  the  present  form  of  the  fortieth  rule  he  must  answer 
them ;  and  he  must  answer  the  facts  of  the  bill  anyhow,  even 
though  special  interrogatories  are  not  propounded.  If,  how- 
ever, the  plaintiff  desires  to  propound  interrogatories,  they  are 

«  Dwight  v.  Humphreys,  Fed.  Cas.  No.  4,216. 
»»  Roach  v.  Hillings,  Fed.  Cas.  No.  11,874. 
i*  Kelley  v.  Boetteher,  85  Fed.  55,  29  C.  C.  A.  14. 
Hughes  Fed.  Jub. — 25 


38G  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  18 

numbered  consecutively,  and  the  defendant  is  required  to  an- 
swer them. 

These  interrogatories  by  the  plaintiff  under  the  present  prac- 
tice largely  obviate  the  necessity  for  a  bill  of  discovery.  This 
is  a  rule,  however,  which  does  not  work  both  ways.  A  defend- 
ant cannot  propound  interrogatories  to  the  plaintiff,  nor  can  he 
compel  the  production  of  papers  in  the  possession  of  the'  plain- 
tiff by  motion  or  subpoena  duces  tecum.  His  only  remedy  is 
by  a  bill  of  discovery.26 

SAME— SAME— INJUNCTION  BILLS. 

156.  Injunction  proceedings  are  instituted  by  the  filing  of  a 
bill  followed  by  an  order  to  show  cause.  In  exceptional 
cases,  where  it  is  necessary  to  preserve  the  status  quo, 
the  court  will  issue  a  temporary  restraining  order. 

The  injunction  bill  must  be  sworn  to. 

The  injunction  remedy  is  an  extraordinary  one,  and  such  re- 
lief should  not  be  granted  unless  it  is  necessary  for  the 
protection  of  the  plaintiff's  rights. 

The  practice  on  bills  praying  special  relief,  like  injunction 
bills,  is  carefully  regulated  by  the  federal  statutes  and  rules. 
A  bill  for  an  injunction  should  always  be  sworn  to,  though  this 
is  not  necessary  in  ordinary  bills.  When  filed,  the  proper  prac- 
tice is  to  issue  a  rule  to  show  cause  why  the  injunction  should 
not  be  granted,  and  name  a  day  for  the  hearing  of  such  a  rule. 
The  remedy  by  injunction  is  an  extraordinary  remedy,  and  in 
theory  such  relief  should  not  be  granted  unless  it  is  necessary 
for  the  protection  of  the  plaintiff's  rights.  It  should  never  be 
granted  merely  because  it  will  do  no  harm.26 

Notice  of  preliminary  injunctions  is  expressly  required  by 
equity  rule  55,  which  reads  as  follows: 

2b  Ryder  v.  Bateman  (C.  C.)  93  Fed.  31. 

ze  Ladd  v.  Oxnard  (C.  C.)  75  Fed.  703;  American  Cereal  Co.  v. 
Cereal  Co.,  76  Fed.  372,  22  C.  C.  A.  236;  Teller  v.  U.  S.,  113  Fed. 
4G3,  51  C.  C.  A.  297. 


§  156)  EQUITY    PROCEDURE    IN    FEDERAL    COURTS.  387 

"Whenever  an  injunction  is  asked  for  by  the  bill  to  stay  pro- 
ceedings at  law,  if  the  defendant  do  not  enter  his  appearance 
and  plead,  demur,  or  answer  to  the  same  within  the  time  pre- 
scribed therefor  by  these  rules,  the  plaintiff  shall  be  entitled  as 
of  course,  upon  motion  without  notice,  to  such  injunction.  But 
special  injunctions  shall  be  grantable  only  upon  due  notice  to 
the  other  party  by  the  court  in  term,  or  by  a  judge  thereof  in 
vacation,  after  a  hearing,  which  may  be  ex  parte,  if  the  adverse 
party  does  not  appear  at  the  time  and  place  ordered.  In  every 
case  where  an  injunction,  either  the  common  injunction  or  a 
special  injunction,  is  awarded  in  vacation,  it  shall,  unless  pre- 
viously dissolved  by  the  judge  granting  the  same,  continue 
until  the  next  term  of  the  court,  or  until  it  is  dissolved  by  some 
other  order  of  the  court." 

And  this  notice  is  necessarily  implied  by  section  718  of  the 
United  States  Revised  Statutes,27  which  reads  as  follows: 

"Whenever  notice  is  given  of  a  motion  for  an  injunction 
out  of  a  circuit  or  district  court,  the  court  or  judge  thereof  may, 
if  there  appears  to  be  danger  of  irreparable  injury  from  delay, 
grant  an  order  restraining  the  act  sought  to  be  enjoined  until 
the  decision  upon  the  motion ;  and  such  order  may  be  granted 
with  or  without  security,  in  the  discretion  of  the  court  or 
judge." 

When  the  effect  of  issuing  a  rule  to  show  cause  without  any 
preventive  process  would  be  that  it  would  leave  the  defendant 
free  to  change  the  status  quo,  the  court,  In  its  discretion,  may 
issue  a  temporary  restraining  order.  The  sole  purpose  of  this 
order,  however,  in  contemplation  of  the  statutes  regulating  the 
subject,  is  to  preserve  the  status  quo.  It  is  necessarily  ex  parte 
in  its  nature,  and  can  be  made  an  instrument  of  great  oppres- 
sion ;  for  by  such  an  order  the  defendant  is  often  compelled  to 
take  action  going  beyond  the  mere  preservation  of  the  status 
quo.     It  is  practically  condemning  him  unheard.28 

27  TJ.  S.  Corup.  St.  1901,  p.  580.  See,  also,  Mowrey  v.  Railroad 
Co.,  Fed.  Cas.  No.  9,891. 

2  8  Fanshawe  v.  Tracy,  Fed.  Cas.   No.  4,643;    Walworth  v.  Cook 


388  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  18 

Thus  the  theory  as  to  the  issuing  of  injunctions  in  the 
eral  courts  is  very  simple,  and  thoroughly  settled  both  by  the 
statutes  and  decisions.  It  is,  in  the  first  place,  the  filing  of 
the  bill  and  the  issuing  of  an  order  to  show  cause ;  in  the  next 
place,  the  issuing  of  a  temporary  restraining  order  in  the  ex- 
ceptional cases  where  that  order  is  necessary  to  preserve  the 
status  quo.  It  must  be  confessed,  however,  that  the  practice 
of  the  courts  does  not  always  accord  with  the  theory.  It  is  not 
at  all  uncommon  to  turn  the  temporary  restraining  order  into 
an  order  that  is  in  all  respects  the  equivalent  of  an  ex  parte  in- 
junction order.  It  is  often  the  case  that  the  courts  issue  the 
rule  to  show  cause  returnable  months  ahead,  and  issue  mean- 
while what  they  call  their  temporary  restraining  order,  giving 
the  defendant,  however,  the  right  to  move  to  dissolve  on  certain 
notice.  Thus  the  good  nature  of  judges  and  pertinacity  of 
counsel  often  change  the  established  practice,  and  not  always 
with  the  effect  of  furthering  the  ends  of  justice. 

SAME— SAME— JUDGES  WHO  MAY  ISSUE  INJUNCTIONS. 

157.  Injunctions  may  be  issued  by  Supreme  Court  justices  or 
circuit  or  district  judges,  subject  to  certain  restrictions 
prescribed  by  statute  as  to  locality  and  duration. 

Section  719  of  the  Revised  Statutes  29  provides  what  judges 
may  issue  injunctions.     It  is  as  follows: 

"Writs  of  injunction  may  be  granted  by  any  justice  of  the 
Supreme  Court  in  cases  where  they  might  be  granted  by  the 
Supreme  Court ;  and  by  any  judge  of  a  circuit  court  in  cases 
where  they  might  be  granted  by  such  court.  But  no  justice 
of  the  Supreme  Court  shall  hear  or  allow  any  application  for 
an  injunction  or  restraining  order  in  any  cause  pending  in  the 

Co.,  Fed.  Cas.  No.  17,136;    Cohen  v.  Delavina  (C.  C.)  104  Fed.  946; 
Miller  v.  Association  (C.  C.)   109  Fed.  278;    North  American  Land 
&  Timber  Co.  v.  Watkins,  109  Fed.  101,  48  C.  C.  A.  254;    Barstow 
v.  Beeket  (C.  C.)  110  Fed.  826. 
2»  U.  S.  Comp.  St.  1901,  p.  581. 


§  158)  EQUITY    PROCEDURE    IN    FEDERAL    COURTS.  3S9 

circuit  to  which  he  is  allotted,  elsewhere  than  within  such  cir- 
cuit, or  at  such  place  outside  of  the  same  as  the  parties  may 
stipulate  in  writing,  except  when  it  cannot  be  heard  by  the 
circuit  judge  of  the  circuit  or  district  judge  of  the  district. 
And  an  injunction  shall  not  be  issued  by  a  district  judge,  as 
one  of  the  judges  of  a  circuit  court,  in  any  case  where  a  party 
has  had  a  reasonable  time  to  apply  to  the  circuit  court  for  the 
writ;  nor  shall  any  injunction  so  issued  by  a  district  judge  con- 
tinue longer  than  to  the  circuit  court  next  ensuing,  unless  so 
ordered  by  the  circuit  court." 

Under  this  the  Supreme  Court  judges  issue  injunctions  only 
in  exceptional  cases.30 

The  qualification  contained  in  the  latter  part  of  the  statute 
as  to  injunctions  issued  by  a  district  judge  must  be  carefully 
borne  in  mind.  It  is  well  settled,  however,  that  only  those 
injunctions  issued  by  the  district  judge  in  vacation  fall  at  the 
beginning  of  the  next  term.  If  they  are  issued  during  a 
regular  session  of  the  circuit  court,  over  which  the  district  judge 
presides,  and  not  in  vacation,  they  have  just  the  same  force  as 
if  a  circuit  court  judge  happened  to  be  holding  the  court; 
for  the  power  of  the  district  judge  to  hold  the  circuit  court  is 
coextensive  with  that  of  the  circuit  judge.31 

SAME— SAME— INJUNCTIONS  TO  STATE  COURTS. 

158.    The  federal  courts  may  issue  injunctions  to  the  parties 
in  state  courts: 

(a)  In  limited  liability  proceedings. 

(b)  In  bankruptcy  proceedings. 

(c)  Whenever  it  becomes  necessary  to  protect  their  own  Ju- 

risdiction previously  acquired,  or 

(d)  When   an  injunction   is  necessary  to  relief  in  a  case  in 

which  it  has  had  prior  jurisdiction. 
Criminal  proceedings  in  a  state  court  will  not  be  enjoined. 

so  Searles  v.  Eailroad  Co.,  2  Woods,  621,  Fed.  Cas.  No.  12,586. 

»i  Goodyear  Dental  V.  Co.  v.  Folsom  (C.  C.)  3  Fed.  509 ;  Gray  v. 
Railroad  Co.,  Fed.  Cas.  No.  5,713 ;  McDowell  v.  Kurtz,  77  Fed.  206,  23 
C.  C.  A.  119;   U.  S.  v.  Weber  (C.  C.)  114  Fed.  950. 


890  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  18 

Section  720  of  the  Revised  Statutes82  provides  as  follows: 

"The  writ  of  injunction  shall  not  be  granted  by  any  court 
of  the  United  States  to  stay  proceedings  in  any  court  of  a  state, 
except  in  cases  where  such  injunction  may  be  authorized  by 
any  law  relating  to  proceedings  in  bankruptcy." 

Notwithstanding  the  general  language  of  this  provision,  the 
settled  law  on  the  subject  is  that  a  federal  court  will  refrain 
from  issuing  injunctions  to  state  courts  only  when  the  state 
court  has  first  acquired  jurisdiction.83 

But  it  will  issue  injunctions  to  the  state  courts,  or  rather 
to  the  parties,  wherever  it  is  necessary  to  protect  its  own  juris- 
diction previously  acquired,  or  when  necessary  to  relief  in 
a  case  of  which  it  has  had  prior  jurisdiction.34 

The  prohibition  against  injunctions  to  the  state  courts  ap- 
plies not  simply  to  the  courts  or  their  officers,  but  to  the  parties 
as  well.  A  federal  court  will  not  enjoin  the  parties  from 
a  proceeding  in  a  state  court  any  more  than  it  will  enjoin  the 
court  officers.35 

Criminal  proceedings  in  a  state  court  will  not  be  enjoined.86 

This  statute  was  first  passed  in  1793.  The  limited  liability 
act  of  1851  is  not  affected  by  it,  and  the  federal  courts  will  issue 
injunctions  to  state  courts  under  that  act  to  prevent  vessel 
owners  from  being  proceeded  against  in  the  state  courts.37 

The   right  to   issue   injunction   proceedings  in   bankruptcy 

32  U.  S.  Comp.  St.  1901,  p.  581. 

3  3  Sharon  v.  Terry  (C.  O.)  36  Fed.  337,  1  L.  R.  A.  572;  Terry  v. 
Sharon,  131  U.  S.  40,  9  Sup.  Ct.  705,  33  L.  Ed.  94 ;  In  re  Watts  & 
Sachs,  190  TJ.  S.  1,  23  Sup.  Ct.  718,  47  L.  Ed.  933;  MORAN  v.  STUR- 
GES,  154  U.  S.  256,  14  Sup.  Ct.  1019,  38  L.  Ed.  981. 

3*  Dietzsch  v.  Huidekoper,  103  U.  S.  494,  26  L.  Ed.  497. 

so  Wagner  v.  Drake  (D.  C.)  31  Fed.  849;  Dial  v.  Reynolds,  96  U. 
S.  340,  24  L.  Ed.  644. 

36  Harkrader  v.  Wadley,  172  TJ.  S.  148,  19  Sup.  Ct.  119,  43  L.  Ed. 
399. 

37  Providence  &  N.  Y.  S.  S.  Co.  v.  Manufacturing  Co..  109  TJ.  S. 
578,  3  Sup.  Ct.  379,  27  L.  Ed.  1038;  MORAN  v.  STURGES,  154  U. 
S.  256,  14  Sup.  Ct.  1019.  38  L.  Ed.  981;  In  re  Whitelaw  (D.  C.)  71 
Fed.  733. 


§  159)     EQUITY  PROCEDURE  IN  FEDERAL  COURTS.       391 

cases  is  expressly  reserved  by  this  act ;  in  fact,  it  is  allowable  to 
enjoin  proceedings  in  state  courts  which  contravene  the  provi- 
sions of  the  bankrupt  act  even  by  such  summary  process  as  by 
rule  to  show  cause.88 


SAME— THE  PROCESS. 

159.   Process  issues  upon  the  filing  of  the  bill.     It  is  usual  to 

file  with  the  clerk  a  praecipe  for  process.      A  general 

appearance  is  a  -waiver  of  issuance  or  service  of  process. 

Service  of  process  must  he  strictly  in  accordance  with  equity 

rule  13,  and  the  return  must  show  such  service. 

Form  of  Process. 

On  filing  the  bill  the  process  issues.  It  is  usual  to  file  with 
the  clerk  a  praecipe  for  process,  and  not  to  rely  upon  him  to 
issue  the  process  merely  because  it  is  prayed  in  the  bill.  In 
fact,  under  the  provisions  of  equity  rule  12,  which  provides  that, 
"'whenever  a  bill  is  filed  the  clerk  shall  issue  the  process  and 
subpoena  thereon  as  of  course  upon  the  application  of  the  plain- 
tiff, which  shall  be  returnable  in  the  clerk's  office  the  next  rule 
day  or  the  next  rule  day  but  one  at  the  election  of  the  plaintiff, 
occurring  twenty  days  after  the  issuing  thereof,"  it  is  implied 
that  a  praecipe  is  necessary  in  order  to  indicate  the  rule  day  to 
which  the  process  is  returnable.  Under  equity  rule  7  the  pro- 
cess of  subpoena  constitutes  the  proper  mesne  process  in  all 
suits  in  equity  in  the  first  instance  to  require  the  defendant  to 
appear  and  answer  the  exigency  of  the  bill.  This  notifies  the 
defendant  to  appear  on  a  given  rule  day,  and  it  is  provided  by 
rule  12  that  at  the  bottom  shall  be  placed  a  memorandum  that 
the  defendant  is  to  enter  his  appearance  in  the  suit  in  the  clerk's 
office  on  or  before  the  day  at  which  the  writ  is  returnable,  other- 
wise the  bill  will  be  taken  pro  confesso. 

As  the  only  object  of  the  issuance  and  service  of  process  is 
to  notify  the  defendant  of  the  proceedings  against  him,  it  is 
unnecessary  in  case  the  defendant  on  hearing  of  the  proceed- 

*s  White  v.  Schloerb,  178  U.  S.  542,  20  Sup.  Ct.  1007,  44  L.  Ed.  1183. 


392  PROCEDURE ORIGINAL   JURISDICTION.  (Ch.  18 

ing  voluntarily  appears.     A  general  appearance  on  his  part  is 
a  waiver  of  the  issuance  or  service  of  process.39 

Under  equity  rule  2  the  first  Monday  of  each  month  is  a  rule 
day,  and  the  process  is  returnable  to  the  rule  day  designated  by 
the  plaintiff  in  his  praecipe. 

Serine e  of  Process. 

Equity  rule  13  provides  as  follows: 

"The  service  of  all  subpoenas  shall  be  by  a  delivery  of  a  copy 
thereof  by  the  officer  serving  the  same,  to  the  defendant  person- 
ally, or  by  leaving  a  copy  thereof  at  the  dwelling-house  or  usual 
place  of  abode  of  each  defendant,  with  some  adult  person  who 
is  a  member  or  resident  in  the  family." 

As  notice  of  suit  is  essential  to  the  defendant  in  order  to 
enable  him  to  protect  himself,  the  provisions  as  to  service  must 
be  carefully  obeyed,  and  the  return  must  show  that  they  have 
been  so  obeyed.  Hence,  where  the  return  was  to  the  effect  that 
the  service  had  been  made  on  an  adult  person,  who  resided  in 
the  defendant's  place  of  abode,  the  court  held  it  insufficient. 
It  was  also  held  that  the  return  must  show  that  the  party  on 
whom  it  was  served  was  a  member  or  resident  in  the  family  of 
the  defendant,  not  merely  an  adult  resident  in  the  defendant's 
place  of  abode,  as  such  a  person  might  be  a  mere  stranger,  like 
a  guest  at  a  hotel,  for  instance,  if  the  defendant  resided  at  a 
hotel.40  The  service  need  not  necessarily  be  in  a  dwelling 
house,  and  hence  a  service  was  upheld  which  was  made  in  a 
grocery  store  in  a  dwelling  house  which  was  all  one  building, 
and  the  party  who  kept  the  store  lived  upstairs.41 

A  process  of  subpoena  is  necessary  in  order  to  bring  the 
defendants  into  court,  even  though  other  notices  may  have 
been  served  on  them.  For  instance,  where  in  an  injunction 
bill,  an  order  to  show  cause  why  the  injunction  should  not  be 

8»  Seattle  L.  S.  &  B.  R.  Co.  v.  Trust  Co.,  79  Fed.  179,  24  0.  C.  A. 
512. 

«o  Blythe  v.  Hinckley  (C.  C.)  84  Fed.  228. 

♦i  Pbcenix  Ins.  Co.  v.  Wulf  (C.  C.)  1  Fed.  775. 


§  160)     EQUITY  PROCEDURE  IN  FEDERAL  COURTS.       393 

issued  was  served  on  the  defendant,  it  was  still  held  that  pro- 
cess was  necessary.42 

Notwithstanding  the  provisions  of  this  rule,  substituted  serv- 
ice is  sometimes  permissible.  This  is  usually  the  case  when  the 
proceeding  is  ancillary  to  some  other  proceeding.  In  such 
case  service  may  be  made  upon  the  plaintiff's  attorney.  But  the 
record  should  show  the  necessity  for  such  service,  and  an  order 
of  court  should  be  obtained  allowing  it.43 

It  has  also  been  seen  in  another  connection  that  in  case  of 
certain  proceedings  to  foreclose  an  equitable  lien,  service  may 
be  made  by  publication.44 

Service  must  be  made  by  the  marshal  or  his  deputy,  general 
or  special.46 

SAME— DEFAULTS 

160.  If  the  defendant  does  not  appear  and  defend  within  the 
timt  required  by  the  eqnity  rules,  the  plaintiff  may 
takt  a  decree  by  default;  in  which  case  no  proof  is 
necessary  if  the  allegations  of  the  bill  are  sufficient  as 
a  basis  for  a  decree. 

The  defendant  is  required  by  rule  17  to  enter  his  appearance 
at  the  rule  day  to  which  the  process  is  returnable,  if  he  has  been 
served  twenty  days  before  that  rule  day,  otherwise  at  the  next 
succeeding  rule  day. 

Rule  18  requires  that  he  shall  file  his  plea,  demurrer,  or  an- 
swer at  the  next  rule  day  after  his  appearance.  This  rule  pro- 
vides also  that,  in  default  of  his  doing  so,  the  plaintiff  may,  at 
his  election,  enter  an  order  (as  of  course)  in  the  order  book  that 
the  bill  be  taken  pro  confesso;  and  thereupon  the  cause  shall 
be  proceeded  in  ex  parte,  and  the  matter  of  the  bill  may  be  de- 
creed by  the  court  at  any  time  after  the  expiration  of  thirty 

42  Wheeler  v.  Walton  &  Whann  Co.  (C.  C.)  65  Fed.  720. 
48  Abraham  v.  Insurance  Co.  (C.  C.)  37  Fed.  731,  3  L.  R.  A.  188; 
Gregory  v.  Pike,  79  Fed.  520,  25  C.  C.  A.  48. 

44  Ante,  p.  233  et  seq. 

45  Hyman  v.  Charles  (C.  C.)  12  Fed.  855. 


394  PROCEDURE — ORIGINAL   JURISDICTION.  (Cll.  18 

days  from  and  after  the  entry  of  said  order,  if  the  same  can  be 
done  without  an  answer,  and  is  proper  to  be  decreed. 

And  equity  rule  19  provides  as  follows : 

"When  the  bill  is  taken  pro  confesso  the  court  may  proceed 
to  a  decree  at  any  time  after  the  expiration  of  thirty  days  from 
and  after  the  entry  of  the  order  to  take  the  bill  pro  confesso, 
and  such  decree  rendered  shall  be  deemed  absolute,  unless  the 
court  shall  at  the  same  term  set  aside  the  same,  or  enlarge  the 
time  for  filing  the  answer,  upon  cause  shown  upon  motion  and 
affidavit  of  the  defendant.  And  no  such  motion  shall  be  grant- 
ed, unless  upon  the  payment  of  the  costs  of  the  plaintiff  in  the 
suit  up  to  that  time,  or  such  part  thereof  as  the  court  shall 
deem  reasonable,  and  unless  the  defendant  shall  undertake  to 
file  his  answer  within  such  time  as  the  court  shall  direct,  and 
submit  to  such  other  terms  as  the  court  shall  direct,  for  the 
purpose  of  speeding  the  cause." 

Under  these  rules  a  final  decree  cannot  be  entered  until  at 
least  one  rule  day  after  the  appearance.48 

When  the  bill  is  so  taken  for  confessed,  the  only  ques- 
tions left  open  are  such  questions  as  cannot  be  covered  by  the 
averments  of  the  bill ;  as,  for  instance,  the  amount  of  dam- 
ages in  an  infringement  suit.  The  fact  of  infringement  is 
no  longer  open.47 

And  after  default  no  proof  is  necessary  on  the  allegations  of 
the  bill.48 

If,  however,  the  allegations  of  the  bill  themselves  are  in- 
sufficient to  support  a  decree,  a  default  cannot  be  entered  even 
where  no  appearance  or  defense  has  been  interposed.49 

The  default  necessary  to  justify  a  decree  by  default  is  a  de- 
fault due  to  the  failure  of  the  defendant  to  appear  and  defend. 
If  he  has  appeared  and  defended,  the  court  cannot  strike  his 


*«  O'Hara  v.  McConnell,  93  U.  S.  150,  23  L.  Ed.  840. 
♦7  Reedy  v.  Electric  Co.,  83  Fed.  709,  28  C.  C.  A.  27. 
48  THOMSON  v.  WOOSTER,  114  U.  S.  104,  5  Sup.  Ct  788,  29  L. 
Ed.  105. 
4»  Wong  Him  v.  Callahan  (C.  C.)  119  Fed.  381. 


§  161)  EQUITY    PROCEDURE    IN    FEDERAL    COURTS.  395 

answer  from  the  files  as  a  punishment  for  contempt,  and  then 
proceed  against  him  as  for  a  default.  Such  action  would  not  be 
due  process  of  law.50 

If  the  defendant  has  appeared,  even  though  he  has  not  de- 
fended, he  is  in  court  so  far  that  he  is  entitled  to  notice  of  any 
application  for  final  decree  even  after  default;  for  he  has  the 
right  to  be  heard  at  least  as  to  the  form  of  final  decree  to  be 
entered,  though  he  may  not  care  to  defend  on  the  merits.51 

A  final  decree  entered  on  a  default  cannot  be  set  aside  after 
the  expiration  of  the  term  at  which  it  is  entered.52 

If,  however,  the  decree  entered  upon  default  is  only  inter- 
locutory in  its  nature,  it  may  be  set  aside  at  a  subsequent 
term.53 

But  if  the  decree  was  entered  by  default  in  a  case  where  the 
court  had  not  acquired  jurisdiction  by  service  of  process  or 
otherwise,  it  may  be  set  aside  on  motion  even  at  a  subsequent 
term,  as  it  is  no  decree  at  all.54 

This  doctrine  that  a  default  decree,  if  final,  cannot  be  set 
aside,  must  not  be  confounded  with  the  right  of  the  court  under 
equity  rule  88  to  grant  a  rehearing  in  ordinary  cases  at  any 
time  during  the  succeeding  term.55 

SAME— THE  DEFENSE 

161.  Matters  of  abatement  must  be  pleaded  first,  and  a  gen- 
eral appearance  acts  as  a  waiver  of  a  special  appear- 
ance. 
Any  matter  of  abatement  as  to  the  merits  may  be  raised  by 
demurrer,  if  the  question  is  apparent  on  the  face  of  the 
bill. 

bo  Hovey  v.  Elliott,  167  U.  S.  409,  17  Sup.  Ct.  841,  42  L.  Ed.  215. 
6i  Bennett  v.  Hoeffner,  Fed.  Cas.  No.  1,320 ;    Southern  Pac.  R.  Co. 
r.  Temple  (C.  C.)  59  Fed.  17. 

62  Austin  v.  Riley  (C.  C.)  55  Fed.  833;  Stuart  v.  St  Paul  (C.  C.) 
63  Fed.  644. 

63  Blythe  v.  Hinckley  (C.  C.)  84  Fed.  228. 

64  Eldred  v.  Car  Co.  (C.  C.)  103  Fed.  209. 

66  MOELLE  v.  SHERWOOD,  148  U.  S.  21,  13  Sup.  Ct.  426,  37  L. 
Ed.  350. 


396  PROCEDURE — ORIGINAL    JURISDICTION.  (Cll.  18 

A  plea  presents  some  single  distinct  defense  which  ■will  de- 
feat the  canse  of  action  and  save  the  trouble  and  ex- 
pense of  going  into  the  case  on  the  general  issues. 

Under  equity  rule  31  no  demurrer  or  plea  shall  be  allowed  to 
be  filed  to  any  bill,  unless  upon  a  certificate  of  counsel 
that,  in  his  opinion,  it  is  -well  founded  in  point  of  law, 
and  supported  by  the  affidavit  of  the  defendant  that  it 
is  not  interposed  for  delay,  and,  if  a  plea,  that  it  is 
true  in  point  of  fact. 

Matters  of  Abatement. 

These  matters  which  merely  defeat  the  special  suit,  and  do 
not  prevent  other  suits  on  the  same  cause  of  action,  are  required 
to  be  pleaded  first.  The  most  familiar  instance  of  them  is  the 
method  of  questioning  the  jurisdiction.  It  is  also  a  well-known 
principle  of  pleading  that  those  matters  of  abatement  which  can 
only  be  set  up  by  a  special  appearance  cannot  be  joined  with 
matters  going  to  the  merits,  and  required  to  be  set  up  by  gen- 
eral appearance,  for  the  filing  of  a  defense  going  to  the  merits 
is  a  waiver  of  defenses  questioning  the  jurisdiction.56 

A  question  in  abatement  like  the  jurisdiction  of  the  court  as 
a  federal  court  either  over  the  subject-matter  or  person  is 
raised  by  demurrer,  if  it  appears  from  the  facts  stated  in  the 
bill  itself." 

If,  however,  the  facts  necessary  to  show  the  lack  of  jurisdic- 
tion do  not  appear  on  the  face  of  the  bill,  the  question  is 
raised  by  a  plea.  The  object  of  a  plea  in  equity  is  to  present 
some  single  distinct  defense  which  will  defeat  the  cause  and 
save  the  trouble  and  expense  of  going  into  the  case  on  the  gen- 
eral issues.58 

Matters  in  Bar. 

The  first  method  of  setting  up  defenses  in  practice  which  go 
to  the  defeat  of  the  entire  action  is  by  demurrer.     This  puts 

e«  Jones  v.  Andrews,  10  Wall.  327,  19  L.  Ed.  935. 
B7  Southern  Pac.  R.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct.  44, 
86  L.  Ed.  377. 

88  U.  S.  v.  Land  Co.,  148  U.  S.  31,  13  Sup.  Ct.  458,  37  L.  Ed.  354; 


§  161)     EQUITY  PROCEDURE  IN  FEDERAL  COURTS.       397 

in  issue  only  such  defenses  as  necessarily  appear  from  the  face 
of  the  bill.  Under  equity  rule  31  no  demurrer  or  plea  shall 
be  allowed  to  be  filed  to  any  bill  unless  upon  a  certificate  of 
counsel  that,  in  his  opinion,  it  is  well  founded  in  point  of  law, 
and  supported  by  the  affidavit  of  the  defendant  that  it  is  not 
interposed  for  delay,  and,  if  a  plea,  that  it  is  true  in  point  of 
fact.  It  has  already  been  seen  that  a  bill  must  be  signed  by 
counsel,  and  that  such  signature  of  counsel  is  a  pledge  of  good 
faith.  This  rule  is  dictated  by  the  same  policy,  and  is  intend- 
ed to  prevent  sham  defenses  interposed  for  mere  delay.  The 
certificate  of  counsel  should  not  be  considered  as  a  mere  form, 
and  should  only  be  annexed  when  the  counsel  is  honestly  of 
the  opinion  that  his  demurrer  is  a  substantial  one.  The  effect 
of  failing  to  annex  this  certificate  is  that  the  plaintiff  may  dis- 
regard the  demurrer  entirely,  and  treat  it  as  never  having  been 
filed,  and  the  court  will  also  so  treat  it.59 

The  failure  to  anner  the  certificate  to  a  plea  is  treated  in  the 
same  way.60 

Instances  of  Defense  Available  by  Demurrer. 

A  demurrer  is  the  proper  way  to  raise  the  question  that  there 
is  an  adequate  remedy  at  law.  If  the  case  asserted  in  the  bill 
belongs  to  any  general  class  of  jurisdiction  in  which  an  equity 
court  is  competent  to  grant  relief,  the  failure  to  demur  is  a 
waiver  of  the  right  to  make  the  point  that  there  is  an  adequate 
legal  remedy.61 

The  defense  that  the  plaintiff  has  been  guilty  of  laches,  or 
that  his  claim  is  barred  by  the  statute  of  limitations,  can  also 
be  raised  by  demurrer  if  the  necessary  facts  appear  on  the 
bill.62 

FARLEY  v.  KITTSON,  120  U.  S.  303,  7  Sup.  Ct.  534,  30  L.  Ed.  684 ; 
Knox  Rock-Blasting  Co.  v.  Stone  Co.  (C.  C.)  87  Fed.  969. 

59  Sheffield  Furnace  Co.  v.  Witherow,  149  U.  S.  574,  13  Sup.  Ct. 
936,  37  L.  Ed.  853. 

so  Central  Nat.  Bank  v.  Insurance  Co.,  104  U.  S.  54,  26  L.  Ed.  G93. 

ei  Brown  v.  Iron  Co.,  134  U.  S.  530,  10  Sup.  Ct.  604,  33  L.  Ed.  1021; 
Perego  v.  Dodge,  163  IT.  S.  160,  16  Sup.  Ct.  971,  41  L.  Ed.  113. 

ez  Speidell  v.  Henrici,  120  U.  S.  377,  7  Sup.  Ct.  610,  30  L.  Ed.  718; 


398  PROCEDURE — ORIGINAL   JURISDICTION.  (Cll.  18 

The  defense  that  the  bill  does  not  show  any  equity  is  also 
available  by  demurrer,  if  appearing  on  the  face  of  the  bill. 
But  the  court  will  grant  relief  under  such  circumstances  if, 
on  any  possible  state  of  the  evidence  or  the  facts  contained  in 
the  bill,  it  could  give  relief,  even  though  those  facts  may  be 
stated  vaguely.  The  defects  in  the  statement  should  be  availed 
of  rather  by  demurrer  pointing  out  the  special  defects  than  by 
general  demurrer.63 

Facts  Admitted  by  Demurrer. 

It  is  the  well-established  principle  of  pleading  that  a  demurrer 
admits  only  facts  well  pleaded;  not  general  statements  or  in- 
ferences or  conclusions  of  law.04 

Joinder  of  Issue  on  Demurrer. 

The  proper  method  of  taking  issue  on  a  demurrer  is  to  set 
it  down  for  argument  as  provided  by  equity  rule  33.  If  the 
plaintiff  does  not  set  it  down  for  argument  on  the  rule  day  when 
it  is  filed,  or  the  next  succeeding  rule  day,  he  admits  its  truth 
and  sufficiency,  and  an  order  for  a  dismissal  of  his  bill  is  of 
course. 

The  proper  method  of  setting  it  down  for  argument  is  to 
have  a  memorandum  to  that  effect  made  in  the  clerk's  office 
under  authority  conferred  by  equity  rule  5.66 

Decision  on  Demurrer. 

In  case  the  demurrer  is  overruled,  it  is  required  by  equity 
rule  34  that  the  defendant  shall  be  assigned  to  answer  the  bill, 
or  so  much  thereof  as  is  covered  by  the  plea  or  demurrer,  at 
the  next  succeeding  rule  day,  or  at  such  other  period  as,  con- 
sistent with  justice  and  the  rights  of  the  defendant,  the  same, 
in  the  judgment  of  the  court,  can  be  reasonably  done ;    in  de- 

Hinchman  v.  Kelley,  54  Fed.  63,  4  C.  C.  A.  189;  Nash  v.  Ingalls, 
101  Fed.  645,  41  C.  C.  A.  545. 

as  Pacific  Live  Stock  Co.  v.  Hanley  (C.  C.)  OS  Fed.  327;  Failey  v. 
Talbee  (C.  C.)  55  Fed.  802. 

64  Preston  v.  Smith  (C.  C.)  26  Fed.  884;  Cornell  v.  Green  (C.  C.) 
43  Fed.  105. 

«b  Gillette  v.  Doheny  (C.  C.)  65  Fed.  715. 


§  161)  EQUITY    PROCEDURE    IN    FEDERAL    COURTS.  399 

fault  whereof  the  bill  shall  be  taken  against  him  pro  con- 
fesso,  and  the  matter  thereof  proceeded  in  and  decreed  ac- 
cordingly. 

The  defendant  is  entitled  as  a  matter  of  right  to  time  to  an- 
swer when  his  demurrer  is  overruled.86 

In  case  the  demurrer  is  sustained,  the  court  may,  in  its  dis- 
cretion, under  the  authority  given  by  equity  rule  35,  allow  the 
plaintiff  to  amend  his  bill  on  such  terms  as  it  shall  deem  reason- 
able. In  fact,  under  equity  rule  29  the  plaintiff  may  obtain  an 
order  to  amend  his  bill  after  the  filing  of  a  demurrer,  and  before 
any  decision  upon  it.  This  right  to  amend  the  bill  after  de- 
cision is  discretionary  with  the  court,  and  is  not  a  matter  of 
absolute  right.  If  the  plaintiff  has  been  negligent  about  it, 
or  has  unduly  delayed  his  request  to  amend,  the  court  may,  in 
its  discretion,  refuse  him  the  right.87 

In  cases  of  extraordinary  importance  the  court  may  refuse 
to  pass  upon  a  demurrer  even  though  it  may  consider  the  same 
probably  well  founded,  and  may  proceed  to  hear  the  proofs.68 

The  Plea. 

The  office  of  a  plea  in  equity  is  to  set  up  facts  constituting  a 
single  defense,  which  will  save  the  defendant  from  the  neces- 
sity of  answering  the  bill,  or  which  will  be  so  decisive  of  the 
case  as  to  obviate  the  necessity  of  an  answer  and  defense  on  all 
the  issues  raised.  A  plea  cannot  merely  set  up  the  facts  in  the 
bill,  for,  if  the  defense  appears  on  the  face  of  the  bill,  a  demur- 
rer is  the  proper  method  of  raising  the  question.  It  can,  how- 
ever, set  up  additional  facts  which,  coupled  with  the  facts  of  the 
bill,  constitute  a  complete  defense.69 

A  plea  must  present  a  single  defense.  In  doing  this  it  may 
set  up  many  facts,  but  they  must  all  look  to  a  single  defense.7' 

«e  Wooster  v.  Blake  (C.  C.)  7  Fed.  816. 

«7  Mercantile  Nat.  Bank  v.  Carpenter,  101  TJ.  S.  507,  25  L.  Ed.  815; 
Edward  P.  Allis  Co.  v.  Lumber  Co.,  105  Fed.  680,  44  C.  C.  A.  673. 
es  Kansas  v.  Colorado,  185  U.  S.  125,  22  Sup.  Ct.  552,  46  L.  Ed.  838. 
69  Missouri  Pac.  R.  Co.  v.  Railroad  Co.  (C.  C.)  50  Fed.  151. 
to  Hazard  v.  Durant  (C.  C.)  25  Fed.  26. 


400  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  18 

A  plea  may  be  purely  negative  if  the  nature  of  the  defense 
admits,  and  may  deny  different  facts,  provided  the  facts  so 
denied  make  up  only  one  issue.71 

Under  equity  rule  31,  a  plea  must  be  accompanied  with  a 
certificate  of  counsel  that,  in  his  opinion,  it  is  well  founded 
in  point  of  law,  and  supported  by  the  affidavit  of  the  defendant 
that  it  is  not  interposed  for  delay,  and  that  it  is  true  in  point 
of  fact.  The  defendant,  as  a  matter  of  right,  can  file  but  one 
plea  raising  a  single  defense;  for  it  is  the  object  of  pleading 
to  narrow  the  issues  so  as  to  make  but  a  single  defense  to  be 
considered  by  the  court  at  any  one  time.  But,  while  only  one 
plea  can  be  filed  at  any  one  time  as  a  matter  of  right,  the  court 
may,  in  its  discretion,  permit  the  defendant  to  file  more  than 
one.72 

The  proper  way  to  raise  the  point  of  another  action  pending 
is  by  plea.7* 

It  is  important  to  bear  in  mind,  however,  in  this  connection 
that  the  pendency  of  a  suit  in  a  state  court  cannot  be  pleaded  in 
bar  to  a  suit  in  the  federal  court,  though  the  latter  may,  in  its 
discretion,  suspend  action  upon  the  case  pending  in  this  court 
until  the  case  in  the  state  court  is  disposed  of.74 

Joinder  of  issue  on  a  plea  is  provided  by  equity  rule  33, 
which  says : 

"The  plaintiff  may  set  down  the  demurrer  or  plea  to  be  ar- 
gued, or  he  may  take  issue  on  the  plea.  If,  upon  an  issue,  the 
facts  stated  in  the  plea  be  determined  for  the  defendant,  they 
shall  avail  him  as  far  as  in  law  and  equity  they  ought  to  avail 
him." 

The  effect  of  setting  down  a  plea  to  be  argued  is  equivalent 
to  demurring  to  it.     J  t  is  an  admission  of  the  facts  in  it,  but 

71  Rhino  v.  Emery  (C.  C.)  79  Fed.  483. 

7  2  Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.  v.  Mining 
Co.,  109  Fed.  504,  47  C.  C.  A.  200;  Gilbert  v.  Murphy  (C.  C.)  100  Fed. 
161. 

7  3  Pierce  v.  Feagans  (C.  C.)  39  Fed.  587. 

74  Bunker  Hill  &  Sullivan  Mining  &  Concentrating  Co.  v.  Mining 
Co.,  109  Fed.  504,  47  C.  C.  A.  200. 


§  161)     EQUITY  PROCEDURE  IN  FEDERAL  COURTS.       401 

denies  that  they  constitute  a  defense.  There  is  no  such  thing 
in  proper  equity  practice  as  a  demurrer  to  a  plea,  though  the 
court  may  treat  a  paper  called  a  demurrer  as  equivalent  to 
setting  it  down  for  argument.715 

As  the  plaintiff  can  only  make  one  defense  to  a  plea  at  any 
one  time,  he  must  first  set  it  down  for  argument,  and  dispose  of 
that  issue  alone,  if  he  wishes  to  question  its  legal  sufficiency. 
If  he  does  not  wish  to  question  its  legal  sufficiency,  or  if  that 
issue  is  decided  against  him,  then  he  can  take  issue  on  the  plea, 
which  is  done  by  filing  a  replication,  and  thereby  the  facts  in 
the  plea  are  put  at  issue.76 

Under  the  old  chancery  practice  joining  issue  upon  a  plea 
was  an  admission  of  its  legal  sufficiency.  Under  equity  rule 
33,  which  provides  that,  if  the  facts  are  determined  for  the  de- 
fendant, they  shall  avail  him  as  far  as  in  law  and  equity  they 
ought  to  avail  him,  this  has  been  changed .  so  that  now,  even 
if  the  facts  are  found  for  the  defendant,  and  there  is  enough 
outside  these  facts  to  justify  a  decree,  the  plaintiff  ought  to 
have  it  This  is  the  natural  construction  of  the  rule,  and  would 
seem  to  be  settled  by  the  case  of  Pearce  v.  Rice.77 

In  view  of  this  decision  it  is  hard  to  sustain  the  case  of 
Daniels  v.  Benedict,78  which  holds  that  taking  issue  on  a  plea 
admits  its  legal  sufficiency.  It  refers  as  authority  for  this  prop- 
osition to  decisions  of  the  Supreme  Court  made  before  the  adop- 
tion of  equity  rule  33,  and  expressly  distinguished  in  the  above 
case  of  Pearce  v.  Rice.  It  refers  in  addition  to  the  later  case 
of  United  States  v.  California  &  O.  Land  Co.79  This  case, 
however,  though  containing  quotations  from  text-books  giving 
the  old  English  chancery  rule,  does  not  purport  to  overrule, 
and  does  not  even  cite,  Pearce  v.  Rice,  and  can  hardly  be  con- 

T6  Zimmerman  v.  SoRelle,  80  Fed.  417,  25  C.  C.  A.  518. 
T6  McVeagh  v.  Waterworks  Co.,  85  Fed.  74,  29  C.  C.  A.  33. 
tt  142  U.  S.  28,  12  Sup.  Ct.  130.  35  L.  Ed.  925.     See,  also,  Elgin 
Wind  Power  &  Pump  Co.  v.  Nichols,  65  Fed.  215,  12  C.  C.  A.  578. 
T8  97  Fed.  367,  38  C.  C.  A.  592. 
7»  148  U.  S.  31,  13  Sup.  Ct.  458,  37  L.  Ed.  354. 

Hughes  Fed.Jub. — 26 


402  PROCEDURE — ORIGINAL   JURISDICTION.  (Cll.  18 

sidered  as  intended  to  announce  a  contrary  doctrine,  or  to  re- 
peal the  clear  language  of  rule  33.  The  later  case  of  Green  v. 
Bogue  ,0  also  holds  that  joining  issue  upon  a  plea  after  setting 
it  down  for  argument  and  a  decision  holding  it  good  in  law 
was  not  a  waiver  of  the  right  to  question  its  legal  sufficiency 
in  the  appellate  court.  In  other  words,  the  plaintiff  does  not 
abandon  the  benefit  of  his  legal  defense  by  subsequently  join- 
ing issue  in  fact  instead  of  standing  upon  his  legal  defense. 
The  effect  of  a  decision  on  a  motion  to  set  a  plea  down  for 
argument  if  in  favor  of  the  complainant  is  that  the  defendant 
should  be  allowed  time  to  reply  in  fact.81 

The  defendant  may,  if  he  so  elects,  stand  upon  his  issue  of 
law  without  joining  issue  in  fact.  The  effect  of  a  decision  in 
favor  of  the  complainants,  where  the  defendant  has  replied  to 
a  plea,  and  thereby  raised  a  question  of  fact,  is  that  the  defend- 
ant should  be  given  time  to  answer.82 

Hence  a  defense  of  fact  may  be  set  up  by  a  plea,  and  may  be 
decided  against  the  defendant,  and  the  defendant  will  still 
have  the  right  to  answer,  with  the  attendant  necessity  of  tak- 
ing evidence  and  trying  the  case  upon  the  issues  raised  by  the 
answer.  The  effect  of  a  decision  for  the  defendant  on  a  plea 
is  that,  if  it  goes  to  the  whole  bill,  it  is  a  final  disposition  of  the 
case,  and  should  result  in  a  decree  for  the  defendant.81 

so  158  U.  S.  478,  15  Sup.  Ct.  975,  39  L.  Ed.  1061. 

•i  McATeagh  v.  Waterworks  Co.,  85  Fed.  74,  29  C.  C.  A.  33. 

«*  Equity  Rule  34;  Westervelt  v.  Library  Bureau,  118  Fed.  824, 
55  G.  C.  A.  436. 

sa  Horn  t.  Dry  Dock  Co.,  150  U.  S.  610,  14  Sup.  Ct  214,  37  L.  Ed. 
1199. 


&  162)  PROCEDURE — ORIGINAL   JURISDICTION.  403 


CHAPTER  XIX. 

PROCEDURE  IN  THE  ORDINARY  FEDERAL  COURTS  OP 

ORIGINAL  JURISDICTION  (Continued)— COURTS 

OF  EQUITY  (Continued). 

162.  The  Defense  (Continued)— The  Answer. 

163.  Same — Same — Joinder  of  Issue  on. 

164.  The  Proofs. 

165.  Same — Testimony  on  Commission  and  Interrogatories. 

166.  Same — Testimony  in  Open  Court. 

167.  Same — Testimony  by  Deposition. 

168.  Same — Testimony  before  Examiner. 

169.  References. 

170.  The  Decree — Form  of. 

171.  Same — Its  Enforcement. 

172.  Same — Reopening  of  Decree. 

THE  DEFENSE  (Continued)— THE  ANSWER. 

162.  The  answer  is  the  method  of  setting  np  a  defense  on  the 
general  issues,  and  asserts  detailed  defenses  to  all  the 
charges  of  the  bill,  and  must  be  responsive  to  the  whole 
of  it. 

Under  the  policy  of  narrowing  issues,  the  defendant  is  not 
allowed  to  plead,  answer,  and  demur  to  the  entire  bill 
at  the  same  time,  though  a  limited  overlapping  of  de- 
fenses is  allowable  under  the  practice. 

Answer  waives  plea  or  demurrer  to  the  whole  bill,  but  not 
to  part  of  same  not  entirely  covered  by  the  answer. 

Answer  under  oath  has  probative  force,  and  is  conclusive  un- 
less contradicted  by  two  witnesses,  or  one  witness  and 
strong  corroborating  circumstances,  provided  the  com- 
plainant does  not  waive  answer  under  oath. 

Statements  in  the  bill  unnoticed  in  the  answer  are  not  con- 
sidered as  admitted,  but  must  be  proved. 

If  the  issues  raised  by  a  demurrer  and  plea  have  been  de- 
cided against  the  defendant,  his  next  and  final  defense  is  by 
answer.     Equity  rule  32  provides  as  follows:     "The  defend- 


404  PROCEDURE — ORIGINAL   JURISDICTION.  (Cll.  19 

ant  may  at  any  time  before  the  bill  is  taken  for  confessed,  or 
afterward  with  the  leave  of  the  court,  demur  or  plead  to  the 
whole  bill,  or  to  part  of  it,  and  he  may  demur  to  part,  plead 
to  part,  and  answer  as  to  the  residue;  but  in  every  case  in 
which  the  bill  specially  charges  fraud  or  combination,  a  plea 
to  such  part  must  be  accompanied  with  an  answer  fortifying 
the  plea,  and  explicitly  denying  the  fraud  and  combination, 
and  the  facts  on  which  the  charge  is  founded." 

There  may  be  only  a  limited  amount  of  overlapping  of  de- 
fenses under  these  circumstances.  Equity  rule  37  provides  as 
follows:  "No  demurrer  or  plea  shall  be  held  bad  and  over- 
ruled upon  argument,  only  because  the  answer  of  the  defend- 
ant may  extend  to  some  part  of  the  same  matter  as  may  be 
covered  by  such  demurrer  or  plea." 

Under  these  two  rules  an  answer  waives  any  plea  or  demur- 
rer going  to  the  whole  bill  which  has  been  previously  filed, 
and  not  acted  upon  by  the  court.  This  is  a  well-established 
rule  of  equity  pleading.1 

But  if  the  plea  or  demurrer  does  not  cover  the  whole  bill, 
and  the  answer  does  not  cover  the  entire  matter  of  defense  set 
up  by  the  plea  or  demurrer,  then  demurrers,  pleas,  and  an- 
swers may  be  filed  at  the  same  time.1 

An  answer  in  equity,  if  under  oath  and  responsive  to  the 
charges  of  the  bill,  is  more  than  a  simple  pleading  putting 
facts  in  issue.  It  has  probative  force  in  itself,  and  is  conclu- 
sive unless  overcome  by  the  testimony  of  two  witnesses,  or 
one  witness  and  corroborating  circumstances.  This  rule, 
coming  from  the  doctrines  of  the  civil  law,  is  firmly  estab- 
lished in  chancery  practice.8 

i  Hudson  v.  Randolph,  66  Fed.  216,  13  C.  C.  A.  402;  Huntington 
v.  Laidley  (C.  C.)  79  Fed.  8G5;  Grant  v.  Insurance  Co.,  121  TJ.  S. 
105,  7  Sup.  Ct.  841,  30  L.  Ed.  905;  Strang  v.  Railroad  Co.,  101  Fed. 
511,  41  C.  C.  A.  474. 

*  Mercantile  Trust  Co.  v.  Railroad  Co.  (C.  C.)  84  Fed.  379;  Grant 
T.  Insurance  Co.,  121  U.  S.  105,  7  Sup.  Ct.  841,  30  L.  Ed.  905. 

s  LATTA  v.  KILBOURN,  150  U.  S.  524,  14  Sup.  Ct.  201,  37  L.  Ed. 
1169;    Coonrod  v.  Kelly,  119  Fed.  841,  56  C.  C.  A.  353. 


§  162)  THE    DEFENSE.  405 

But  this  rule  ceases  where  the  reason  for  it  no  longer  exists, 
and  hence  even  an  answer  under  oath,  professing  not  to  be  on 
personal  knowledge,  has  no  probative  force,  and  merely  puts 
the  matter  in  issue.4 

The  complainant,  however,  if  he  wishes  to  avoid  the  effect 
of  an  answer  as  evidence,  can  do  so,  under  the  provisions  of 
equity  rule  41,  by  waiving  an  answer  on  oath.  In  such  case 
it  has  no  probative  force,  even  though  the  defendant  should 
choose  to  swear  to  it. 

Statements  in  the  bill  neither  admitted  nor  denied  by  the 
answer  are  not  considered  as  impliedly  admitted,  but  must  be 
proved,  for  the  plaintiff  has  the  right  to  except  to  the  answer 
for  insufficiency  if  it  is  not  fully  responsive,  and,  if  he  fails 
to  do  so,  he  cannot  claim  that  it  is  an  admission  of  any  unno- 
ticed statement.6 

The  defenses  available  by  means  of  answer  are  all  issues 
raised  in  the  bill  Even  matters  of  law  may  be  set  up  by 
answer.6 

The  defendant  is  not  bound  to  set  up  defenses  by  plea  which 
could  probably  be  set  up  in  that  manner,  but,  under  the  express 
provision  of  rule  39,  he  may  set  these  also  up  by  answer;  and, 
if  he  chooses  to  do  so,  he  cannot  be  required  in  his  answer  to 
respond  to  any  other  matters  than  he  would  have  been  required 
to  answer  if  he  filed  a  plea  and  an  answer  in  support  of  the 
plea  Under  such  circumstances,  he  can  even  fail  to  answer 
interrogatories.7 

An  answer  may  set  up  the  same  defense  in  different  aspects, 
with  different  statements  of  fact  connected  therewith,  but  it 
cannot  set  up  inconsistent  defenses,  and  facts  to  support  them, 
for  an  answer  is  supposed  to  be  under  oath,  and  an  equity 

*  Hanchett  v.  Blair,  100  Fed.  817,  41  C.  C.  A.  76;  Savings  &  Loan 
Soc.  v.  Davidson,  97  Fed.  696,  38  C.  C.  A.  365. 

e  Lovell  v.  Johnson  (C.  C.)  82  Fed.  206. 

«  Farmers'  Loan  &  Trust  Co.  v.  Railroad  Co.  (C.  C.)  76  Fed.  15. 

*  Gaines  v.  Agnelly,  Fed.  Cas.  No.  5,173 ;  Hatch  v.  Bancroft-Thomp- 
son Co.  (C.  C.)  67  Fed.  802;    Holton  v.  Guinn  (C.  C.)  65  Fed.  450. 


406  PROCEDURE ORIGINAL   JURISDICTION.  (Ch.  19 

court  will  not  allow  the  litigant  to  swear  to  two  entirely  oppo- 
site and  inconsistent  statements  of  fact* 

Under  equity  rule  52,  want  of  parties  may  be  set  up  by  an- 
swer. 

Answer  to  Interrogatories. 

As  the  plaintiff  may  propound  interrogatories  to  the  defend- 
ant in  the  bill,  the  answer  must  contain  the  replies  to  these  in- 
terrogatories. But  the  defendant  is  not  required  to  answer 
interrogatories  which  he  may  have  avoided  answering  by  de- 
murrer.9 

If,  however,  he  declines  to  answer  interrogatories,  he  cannot 
merely  state  that  he  does  so  under  advice,  but  he  must  give  the 
reasons  why  he  declines  to  answer  them,  so  as  to  enable  the 
court  to  say  whether  he  has  any  good  reason.10 

He  can  decline  to  answer  an  interrogatory  on  the  ground 
that  it  would  require  him  to  disclose  a  trade  secret.11 

SAME-SAME— JOINDER  OF  ISSUE  ON. 

163.    The  joinder  of  issue  on  an  answer  may  be  accomplished 

(a)  By  exception; 

(b)  By  replication; 

(c)  By  setting  case  for  hearing  on  hill  and  answer. 
Even  matters  of  law  may  he  set  up  hy  answer. 

Exceptions. 

Issue  is  joined  on  an  answer  in  the  first  place  by  exceptions 
thereto.1* 

There  is  no  such  thing  as  a  demurrer  to  an  answer.13 

»  Ozark  Land  Co.  v.  Leonard  (C.  0.)  24  Fed.  660;  Von  Schroder  v. 
Brittan  (C.  C.)  98  Fed.  169. 

»  Rule  44. 

io  Boyer  v.  Keller  (C.  C.)  113  Fed.  580. 

ii  Federal  Manufacturing  &  Printing  Co.  v.  Bank  Note  Co.  (C.  C.) 
119  Fed.  385. 

12  Rule  61. 

is  Grether  v.  Wright,  75  Fed.  742,  23  C.  C.  A.  498;  Stokes  v. 
Farnsworth  (C.  C.)  99  Fed.  S36. 


§  163)  THE    DEFENSE.  407 

The  office  of  exceptions  is  to  compel  a  thorough  answer; 
that  is,  to  raise  the  question  of  its  insufficiency,  and  also  to 
object  for  impertinence  or  scandal.1* 

Replication. 

If  the  issue  to  the  answer  is  an  issue  of  fact,  it  is  raised  by 
general  replication.18  Special  replications  can  no  longer  be 
used  in  the  federal  chancery  practice.  The  replication  must 
be  in  writing,  and  must  be  actually  filed.  The  practice  in 
some  states  (Virginia,  for  instance)  of  having  the  clerk  merely 
enter  up  a  replication  on  the  docket  does  not  prevail  in  the 
federal  court.1' 

Hearing  on  Bill  and  Answer. 

Another  step,  which  practically  amounts  to  joining  issue 
on  the  answer,  is  by  setting  the  case  for  hearing  on  bill  and 
answer.  This  is  tantamount  to  the  position  that  the  answer 
is  so  insufficient  as  not  to  amount  to  a  legal  defense — in  other 
words,  to  a  demurrer  to  the  answer.17 

But  when  this  step  is  taken,  the  sufficiency  of  all  the  facts 
well  pleaded  in  the  answer,  whether  they  consist  of  mere  de- 
nials of  the  bill,  or  of  defenses,  of  new  matter,  is  admitted ; 
and  the  plaintiff,  by  resorting  to  it,  runs  the  risk  of  making  his 
case  rest  upon  the  position  that  he  is  entitled  to  a  decree  upon 
bill  and  answer,  and,  if  he  should  turn  out  to  be  mistaken,  he 
has  no  further  right  to  insist  upon  joining  issue  and  taking 
proofs. 

i*  Barrett  v.  Power  Co.  (O.  C.)  Ill  Fed.  45. 
16  Rules  45,  66. 

i«  Coleman  v.  Martin,  Fed.  Cas.  No.  2,986;  Washington,  A.  &  G. 
R.  Co.  v.  Bradley,  10  Wall.  302.  19  L.  Ed.  894. 

if  Banks  v.  Manchester,  128  U.  S.  244,  9  Sup.  Ct  36,  32  L.  Ed.  425. 


408  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  19 


THE  PROOFS. 

164.    The    evidence   in    equity   causes   is   by   deposition,    except 
where  the  equity  rules  permit  testimony  in  open  court. 

By  section  862  of  the  Revised  Statutes  18  it  is  provided  that 
"the  mode  of  proof  in  causes  of  equity  and  of  admiralty  and 
maritime  jurisdiction  shall  be  according  to  rules  now  or  here- 
after prescribed  by  the  Supreme  Court,  except  as  herein  spe- 
cially provided." 

The  special  provisions  alluded  to  are  those  authorizing  the 
taking  of  depositions.  Subject  to  these  provisions,  the  equity 
rules  make  elaborate  provisions  for  the  taking  of  testimony. 
They  are  contained  in  Rules  67  to  71,  inclusive. 


SAME— TESTIMONY  ON  COMMISSION  AND 
INTERROGATORIES. 

165.   The  equity  rules  authorize  the  issuing  of  commissions  to 
take  testimony  after  due  notice. 

The  first  two  paragraphs  of  rule  67  provide  as  follows: 
"After  the  cause  is  at  issue,  commissions  to  take  testimony 
may  be  taken  out  in  vacation  as  well  as  in  term,  jointly  by  both 
parties,  or  severally  by  either  party,  upon  interrogatories  filed 
by  the  party  taking  out  the  same  in  the  clerk's  office,  ten 
days'  notice  thereof  being  given  to  the  adverse  party  to  file 
cross-interrogatories  before  the  issuing  of  the  commission ;  and 
if  no  cross-interrogatories  are  filed  at  the  expiration  of  the 
time  the  commission  may  issue  ex  parte.  "In  all  cases  the 
commissioner  or  commissioners  may  be  named  by  the  court 
or  by  a  judge  thereof;  and  the  presiding  judge  of  the  court 
exercising  jurisdiction  may,  either  in  term  time  or  in  vaca- 
tion, vest  in  the  clerk  of  the  court  general  power  to  name 
commissioners  to  take  testimony." 

«  U.  S.  Comp.  St.  1901,  p.  661. 


§  166)  THE    PROOFS.  *  409 

This  is  the  rule  under  which  testimony  is  taken  by  filing 
interrogatories  and  having  the  witnesses  answer  them.  The 
provisions  as  to  taking  testimony  must  be  strictly  followed.19 

Rule  71  sets  out  the  form  of  general  interrogatory  which  is 
always  put  at  the  last,  after  the  special  questions  framed  to 
meet  the  special  case.     It  is  as  follows : 

"The  last  interrogatory  in  the  written  interrogatories  to  take 
testimony,  now  commonly  in  use,  shall  in  the  future  be  altered, 
and  stated,  in  substance,  thus :  'Do  you  know,  or  can  you  set 
forth  any  other  matter  or  thing  which  may  be  a  benefit  or 
advantage  to  the  parties  at  issue  in  this  cause,  or  either  of 
them;  or  that  may  be  material  to  the  subject  of  this  your  exam- 
ination, or  the  matters  in  question  in  this  cause?  If  yea,  set 
forth  the  same  fully  and  at  large  in  your  answer.'  " 

Under  this  interrogatory  the  witness  may  give  any  informa- 
tion which  he  ma)  possess  pertinent  to  the  issue,  even  though 
he  has  not  been  specially  interrogated  in  reference  thereto.20 

And  this  general  interrogatory  must  be  answered,  or  the 
deposition  is  fatally  defective.21 

SAME— TESTIMONY  IN  OPEN  COURT. 

166.    The  judge  is  given  discretionary  power  to  hear  testimony 
ore  tenus. 

One  of  the  paragraphs  of  equity  rule  67  provides  as  fol- 
lows: 

"Upon  due  notice  given,  as  prescribed  by  previous  order, 
the  court  may,  at  its  discretion,  permit  the  whole  or  any  spe- 
cific part  of  the  evidence  to  be  adduced  orally  in  open  court, 
on  final  hearing." 

This  is  quite  a  departure  from  the  usual  practice  which  has 
always  prevailed  in  an  equity  court,  and  it  is  entirely  within 

i»  Rhoades  v.  Selin,  Fed.  Cas.  No.  11,740. 
ao  Rhoades  v.  Selin,  Fed.  Cas.  No.  11.740. 
2i  Richardson  v.  Golden,  Fed.  Cas.  No.  11,782. 


410  PROCEDURE ORIGINAL   JURISDICTION.  (Ch.  19 

the  discretion  of  the  court  whether  to  permit  it  or  not.  It  is 
rarely  allowed,  on  account  of  the  time  of  the  judge  which  it 
necessarily  consumes.  When,  however,  the  engagements  of 
the  judge  permit,  it  is  an  advantageous  proceeding,  because  it 
enables  him  to  see  the  witnesses  and  judge  of  their  testi- 
mony much  better  than  by  merely  reading  it  on  paper.  This 
course  cannot  be  taken,  however,  unless  notice  has  been  given 
to  all  parties.22 

In  case  there  are  objections  to  evidence  during  the  conduct 
of  such  an  examination,  although  the  evidence  is  decided  by 
the  lower  court  to  be  improper,  it  should  be  taken  down,  sub- 
ject to  exception,  as  otherwise  the  appellate  court  would  have 
no  means  of  passing  upon  the  propriety  of  ruling  the  testi- 
mony out;  bills  of  exception  being  no  part  of  any  equity  pro- 
ceeding." 

SAME— TESTIMONY  BY  DEPOSITION. 

167.  Testimony  may  also  be  taken  by  deposition,  either  nnder 
the  provisions  of  the  Revised  Statutes,  or  nnder  the 
state  practice. 

Rule  68  provides  as  follows: 

"Testimony  may  also  be  taken  in  the  cause,  after  it  is  at  is- 
sue, by  deposition,  according  to  the  act  of  Congress.  But 
in  such  case,  if  no  notice  is  given  to  the  adverse  party  of  the 
time  and  place  of  taking  the  deposition,  he  shall,  upon  motion 
and  affidavit  of  the  fact,  be  entitled  to  a  cross-examination  of 
the  witness,  either  under  a  commission  or  by  a  new  deposition 
taken  under  the  acts  of  Congress,  if  a  court  or  judge  thereof 
shall,  under  all  the  circumstances,  deem  it  reasonable." 

In  addition  to  the  acts  of  Congress,  it  may  also  be  taken 
under  the  recent  act  permitting  testimony  to  be  taken  in  ac- 
cordance with  the  state  practice.24 

22  Mears  v.  Lockhart,  94  Fed.  274,  36  C.  C.  A.  239. 
ss  Blease  v.  Garlington,  92  TJ.  S.  1,  23  L.  Ed.  521;  Mears  ▼.  Lock- 
hart,  94  Fed.  274,  36  C.  C.  A.  239. 
2*  Ante,  p.  364. 


§  168)  THE   PROOFS.  ±13 

Rule  68  implies  that  depositions  under  its  provisions  can  be 
taken  without  notice  to  the  adverse  party,  although  he  can 
afterwards  demand  the  right  of  cross-examination  or  retaking 
the  deposition  under  the  circumstances  provided  by  the  rule. 

Under  rule  70,  testimony  may  also  be  taken  de  bene  esse, 
but  this  can  only  be  done  after  the  cause  is  at  issue.26 

The  sixty-ninth  rule  limits  the  time  of  taking  testimony  to 
three  months  after  the  cause  is  at  issue,  and  this  rule  is  en- 
forced unless  the  parties  agree  to  extend  it,  either  expressly 
or  impliedly.  It  would  seem  clear  that  any  action  of  the  party 
that  would  constitute  a  waiver  of  the  right  to  object  on  the 
ground  of  the  limitation  of  time  would  be  considered  such  an 
agreement — as,  for  instance,  appearing  and  cross-examining 
without  raising  the  objection.26 

This  limitation  of  three  months  applies  to  the  testimony  of 
the  plaintiff  and  defendant  both,  but  the  court  is  liberal  in 
extending  the  time  on  any  proper  showing.27 

This  limitation  applies  only  to  testimony  taken  by  deposi- 
tion, not  to  testimony  taken  on  reference.28 

SAME— TESTIMONY  BEFORE  EXAMINER. 

168.  Rule  67  also  provides  that  on  due  notice  the  court  may 
enter  an  order  that  the  testimony  in  the  case  he  taken 
before  one  of  the  examiners  of  the  court,  or  one  spe- 
cially appointed.  As  last  amended,  it  permits  the  testi- 
mony to  be  taken  down  by  a  stenographer. 

The  examiner  is  practically  a  clerk  to  take  the  testimony 
down,  and  is  not  expected  to  do  more  than  to  see  that  it  is 
taken  down  properly,  and  then  report  it  to  the  court.    He  has 

»o  Stevens  v.  Railroad  Co.  (C.  C.)  104  Fed.  934. 

ae  Werham  v.  Switzer  (C.  C.)  48  Fed.  612;  Western  Electric  Co. 
v.  Telegraph  Co.  (C.  C.)  86  Fed.  769;  Brown  v.  Worster  (C.  C.)  113 
Fed.  20. 

27  ingle  v.  Jones,  9  Wall.  486,  19  L.  Ed.  621. 

2«  Coosaw  Min.  Co.  v.  Mining  Co.  (C.  C.)  67  Fed.  31. 


112  PROCEDURE ORIGINAL    JURISDICTION.  (Cll.  19 

no  power  to  pass  upon  any  questions  of  evidence  that  may 
arise,  but  he  may  state  any  questions  to  the  court  that  he  may 
judge  to  be  proper.  He  can  compel  the  attendance  of  witness- 
es, and,  when  the  testimony  is  completed,  he  transmits  it  to  the 
clerk  of  the  court.  Under  this  part  of  the  rule,  an  examiner 
may  be  appointed  outside  of  the  jurisdiction  of  the  court,  and 
may  compel  the  attendance  of  witnesses  outside  of  such  juris- 
diction.29 

The  witnesses  under  examination  should  answer  questions 
put  to  them,  though  they  may  be  irrelevant,  but  the  court  will 
protect  them  from  answering  any  questions  which  merely  pry 
into  their  private  affairs.80 

Objections  to  questions  should  specify  the  ground  of  the  ob- 
jection sufficiently  to  advise  the  court,  or  they  will  not  be  con- 
sidered.31 

REFERENCES. 

169.    It  is  common  in  chancery  cases  to  have  references  of  vari- 
ous matters  to  special  masters  or  commissioners.     This, 
however,  is  not  a  matter  of  right. 
When  special  questions  are  referred  to  a  master,  his  report 
is    entitled    to    great    weight,    because    of    his    superior 
facilities  for  investigation;   but  his  findings  are  not  con- 
clusive, and  may  be  set  aside  by  the  court. 
Exceptions   to   a   master's   report   must  be   filed  within   one 
calendar  month  from  the  filing  of  the  report.      Objec- 
tions to  the  report  must  be  taken  at  the  time  the  same 
is  read  to  the  parties  by  the  master. 
Exceptions  are  not  necessary  for  the  purpose  of  raising  ques- 
tions of  law  appearing  on  the  face  of  the  report. 
On  consent  of  parties,   the  court  may  refer  to  a  master  the 
entire    question,    both    of    law    and    fact,    in    the    case. 
When  this  is  done,  the  decision  of  the  master  is  pre- 
ss White  v.  Railroad  Co.,  79  Fed.  133,  24  C.  C.  A.  467.     In  re  Spof- 
ford  (C.  C.)  62   Fed.  443;    J.  L.   Mott  Ironworks  v.  Manufacturing 
Co.  (C.  C.)  48  Fed.  345. 

so  Robinson  v.  Railroad  Co.  (C.  C.)  28  Fed.  340. 
si  Hamilton  v.  Mining  Co.  (C.  C.)  33  Fed.  562. 


§  169>  REFERENCES.  413 

snmptively  correct,  and  can  be  overruled  only  when 
there  has  been  manifest  error  in  the  consideration  given 
to  the  evidence,  or  in  the  application  of  the  law. 

In  almost  every  chancery  case  there  is  occasion  for  refer- 
ences of  various  matters  to  special  masters  or  commissioners. 
A  reference,  however,  is  not  a  matter  of  right,  and  is  not  al- 
lowed unless  the  plaintiff  shows  a  prima  facie  case ;  nor  is  it 
allowed  for  the  mere  purpose  of  aiding  him  to  make  out  his 
case.32 

Nor  i?  the  court  bound  to  refer  any  questions,  but  it  may, 
if  it  sees  fit,  go  into  questions  of  account  itself,  or  have  the 
account^  made  up  at  the  bar  of  the  court.33 

The  appointment  of  masters  in  chancery  is  provided  by  rule 
82.  which  allows  circuit  courts  to  appoint  standing  masters  in 
chancery  in  their  respective  districts,  or  to  appoint  a  master  pro 
hac  vice  in  any  particular  case.  Their  duties  are  well  defined 
b>  Justice  Field  in  the  case  of  Kimberly  v.  Arms.34 

Under  the  act  of  March  3,  1879,35  clerks  or  their  deputies 
should  not  be  appointed  special  masters  unless  the  court  certifies 
in  the  order  that  there  is  a  good  reason  for  such  appointment 
in  the  special  case.  If,  however,  they  are  appointed,  such  ap- 
pointment cannot  be  questioned  collaterally,  and  their  acts 
are  valid.38 

There  are  no  special  statutes  regulating  the  amount  of  com- 
pensation of  such  masters,  but  that  is  a  question  of  discretion 
in  the  court.37 

The  practice  of  referring  the  whole  case  to  a  master  has  been 

8  2  Columbian  Equipment  Co.  v.  Trust  Co.,  113  Fed.  23,  51  C.  C. 
A.  33. 

ss  Brown  v.  Grove,  80  Fed.  564,  25  C.  C.  A.  644.    ' 

34  KIMBERLY  v.  ARMS,  129  U.  S.  512,  9  Sup.  Ct.  355,  32  L.  Ed. 
764. 

3  5  20  Stat.  415,  c.  183  [TJ.  S.  Comp.  St.  1901,  p.  591]. 

36  Seaman  v.  Insurance  Co.,  86  Fed.  500,  30  C.  C.  A.  212. 

»7  Finance  Committee  v.  Warren,  82  Fed.  525,  27  C.  C.  A.  472. 


414  PROCEDURE — ORIGINAL   JURISDICTION.  (Ch.  19 

frequently  disapproved,  for  only  separate  questions  should  be 
referred  to  him. 

If  an  order  is  entered  by  consent  of  both  parties  referring 
to  him  all  questions  in  the  case,  it  comes  very  near  an  arbitra- 
tion, and  his  findings  in  such  case  are  very  difficult  to  question. 
On  this  subject  Chief  Justice  Field  says  in  the  case  of  Kim- 
berly  v.  Arms  :  S8 

"A  master  in  chancery  is  an  officer  appointed  by  the  court  to 
assist  it  in  various  proceedings  incidental  to  the  progress  of  a 
cause  before  it,  and  is  usually  employed  to  take  and  state  ac- 
counts, to  take  and  report  testimony,  and  to  perform  such  du- 
ties as  require  computation  of  interest,  the  value  of  annuities, 
the  amount  of  damages  in  particular  cases,  the  auditing  and 
ascertaining  of  liens  upon  property  involved,  and  similar  serv- 
ices. The  information  which  he  may  communicate  by  his  find- 
ings in  such  cases,  upon  the  evidence  presented  to  him,  is  mere- 
ly advisory  to  the  court,  which  it  may  accept  and  act  upon  or 
disregard,  in  whole  or  in  part,  according  to  its  own  judgment 
as  to  the  weight  of  the  evidence.    *    *    * 

"It  is  not  within  the  general  province  of  a  master  to  pass 
upon  all  the  issues  in  an  equity  case,  nor  is  it  competent  for 
the  court  to  refer  the  entire  decision  of  a  case  to  him  without 
the  consent  of  the  parties.  It  cannot,  of  its  own  motion,  or  up- 
on the  request  of  one  party,  abdicate  its  duty  to  determine  by 
its  own  judgment  the  controversy  presented,  and  devolve  that 
duty  upon  any  of  its  officers.  But  when  the  parties  consent  to 
the  reference  of  a  case  to  a  master  or  other  officer  to  hear  and 
decide  all  the  issues  therein,  and  report  his  findings,  both  of  fact 
and  of  law,  and  such  reference  is  entered  as  a  rule  of  the  court, 
the  master  is  clothed  with  very  different  powers  from  those 
which  he  exercises  upon  ordinary  references,  without  such  con- 
sent, and  his  determinations  are  not  subject  to  be  set  aside  and 

s»  KIMBERLY  v.  ARMS,  129  U.  S.  512,  9  Sup.  Ct.  355,  32  L.  Ed. 
764.  See,  also,  Furrer  v.  Ferris,  145  U.  S.  132,  12  Sup.  Ct.  821,  36 
L.  Ed.  649;  Davis  v.  Schwartz,  155  U.  S.  631,  15  Sup.  Ct  237,  39  L. 
Ed.  289. 


§  169)  REFERENCES.  *lo 

disregarded  at  the  mere  discretion  of  the  court.  A  reference, 
by  consent  of  parties,  of  an  entire  case,  for  the  determination 
of  all  its  issues,  though  not  strictly  a  submission  of  the  con- 
troversy to  arbitration — a  proceeding  which  is  governed  by 
special  rules— is  a  submission  of  the  controversy  to  a  tribunal 
of  the  parties'  own  selection,  to  be  governed  in  its  conduct  by 
the  ordinary  rules  applicable  to  the  administration  of  justice  in 
tribunals  established  by  law.  Its  findings,  like  those  of  an  in- 
dependent tribunal,  are  to  be  taken  as  presumptively  correct — 
subject,  indeed,  to  be  reviewed  under  the  reservation  con- 
tained in  the  consent  and  order  of  the  court,  when  there  has 
been  manifest  error  in  the  consideration  given  to  the  evidence, 
or  in  the  application  of  the  law,  but  not  otherwise." 

But  where  the  master  is  appointed  otherwise  than  by  consent, 
and  only  special  questions  are  referred  to  him,  his  findings, 
while  strong,  are  not  conclusive.  There  is  always  a  presump- 
tion in  favor  of  such  findings,  as  he  has  had  the  opportunity 
of  seeing  the  witnesses  themselves,  and  has  other  facilities  for 
judging  of  the  value  of  their  testimony  which  are  not  available 
to  the  court.  But  in  such  case  they  can  be  questioned  with  some 
show  of  success.39 

A  master,  in  exercising  a  reference,  may  take  testimony  out- 
side of  the  district.40 

When  the  master's  report  is  completed  and  filed  in  the  clerk's 
office,  the  parties  have  one  month  therefrom  for  the  purpose  of 
filing  exceptions;  and  this  means  a  calendar,  not  a  lunar, 
month.41 

Great  care  is  requisite  in  the  preparation  of  these  exceptions. 
Exceptions  to  questions  of  fact  cannot  be  taken  at  all  unless 
the  evidence  is  sent  up  with  the  report.43 

soBosworth  v.  Hook,  77  Fed.  686,  23  C.  C.  A.  404;  Taintor  v. 
Bank  (C.  C.)  107  Fed.  825;  Girard  Life  Ins.,  Annuity  &  Trust  Co.  v. 
Cooper,  162  U.  S.  529,  16  Sup.  Ct.  879,  40  L.  Ed.  1062. 

«o  Consolidated  Fastener  Co.  v.  Fastener  Co.  (C.  C.)  85  Fed.  54. 

*i  Rule  83 ;   Gasquet  v.  Brewing  Co.  (C.  C.)  49  Fed.  493. 

42  SHEFFIELD  &  B.  COAL,  IRON  &  R.  CO.  v.  GORDON,  151 
U.  S.  285,  14  Sup.  Ct  343,  38  L.  Ed.  164. 


416  PROCEDURE — ORIGINAL   JURISDICTION.  (Cll.  19 

Nor  can  they  be  first  taken  in  the  appellate  court.43 

They  must  be  specific,  must  raise  clearly  defined  issues,  and, 
when  to  questions  of  fact,  they  should  refer  to  the  part  of  the 
testimony  relied  on  to  set  the  finding  aside.4* 

The  proper  practice  in  reference  to  the  preparation  of  ex- 
ceptions is  for  the  master,  when  he  has  completed  his  draft  of 
report,  and  before  he  files  it,  to  notify  the  different  parties 
interested  to  appear  before  him,  and  then  to  submit  it  to  them. 
When  they  so  appear,  they  should  point  out  to  him  the  parts  in 
it  in  which  they  think  he  is  in  error,  so  as  to  give  him  the  op- 
portunity of  correcting  it  if  he  sees  fit ;  and  he  should  embody 
in  his  report  a  statement  that  the  parties  had  excepted  to  cer- 
tain parts.  This  procedure  is  rendered  necessary  by  the  line  of 
decisions  which  hold  that  matters  not  brought  to  the  attention 
of  the  master  cannot  be  made  the  subject  of  exception.45 

If  the  master  should  disregard  this  practice,  and  file  his  re- 
port without  giving  the  parties  an  opportunity,  it  would  seem 
pretty  clear,  under  the  language  of  the  eighty-ninth  rule,  that 
they  could  then  file  their  exceptions  anyhow. 

Exceptions  are  not  necessary  for  the  purpose  of  raising 
questions  of  law  appearing  on  the  face  of  the  report.48 

The  reports  which  can  be  excepted  to  within  one  month 
are  those  reports  referred  to  the  master  in  which  he  acts  in  a 
semijudicial  capacity,  but  the  rule  does  not  apply  to  the  right 
of  a  special  master  appointed  to  conduct  sales  of  property.47 

48  Topliff  v.  Topliff,  145  U.  S.  156,  12  Sup.  Ct  825,  36  L.  Ed.  658. 

44  SHEFFIELD  &  B.  COAL,  IRON  &  R.  CO.  v.  GORDON,  151 
U.  S.  2S5,  14  Sup.  Ct.  343,  38  L.  Ed.  164;  Stanton  v.  Railroad  Co., 
Fed.  Cas.  No.  13,296;  Farrar  v.  Bernheim,  75  Fed.  136,  21  C.  C.  A. 
264. 

4  5  Columbus  S.  &  H.  R.  Co.'s  Appeal,  109  Fed.  177,  48  C.  C.  A.  275; 
McMicken  v.  Perin,  18  How.  507,  15  L.  Ed.  504;  Gay  Mfg.  Co.  v. 
Camp,  68  Fed.  67,  15  C.  C.  A.  226. 

46  Home  Land  &  Cattle  Co.  v.  MeNamara,  111  Fed.  822,  49  C.  C. 
A.  642;  Burke  v.  Davis,  81  Fed.  907,  26  C.  C.  A.  675;  Celluloid  Mfg. 
Co.  v.  Manufacturing  Co.  (C.  C.)  40  Fed.  476. 

4T  Pewabic  Min.  Co.  v.  Mason,  145  U.  S.  349,  12  Sup.  Ct  887,  36 
L.  Ed.  732. 


§  171)  THE    DECREE.  117 

An  exception  should  not  be  used  as  a  means  of  setting 
up  a  new  defense  in  the  case  which  has  not  already  appeared 
in  the  pleadings.48 

The  rnaster,  in  the  exercise  of  a  sound  discretion,  may  permit 
new  evidence  after  he  has  submitted  the  draft  of  report  to  the 
parties,  if  he  thinks  the  equities  of  the  case  call  for  it.49 

But  after  the  report  has  been  drafted  it  is  not  permissible 
for  a  petitioner  to  come  in  and  amend  his  petition  so  as  to  set 
up  a  new  ground  of  recovery  thereon." 

THE  DECREE— FORM  OF. 

170.  In  the  federal  practice,  it  is  not  necessary,  in  preparing 
the  decree,  to  "hring  the  case  on,"  as  it  is  technically 
called,  by  reciting  all  the  previous  proceedings  in  the 
case. 

A  decree  may  simply  commence  as  follows :  "This  cause 
came  on  to  be  heard  at  this  term,  and  was  argued  by  counsel ; 
and  thereupon,  upon  consideration  thereof,  it  was  adjudged, 
ordered,  and  decreed  as  follows,"  etc.51 

SAME— ITS  ENFORCEMENT. 

171     Equity  decrees  are  enforceable: 

(a)  Against  the  property  of  the  parties: 

(1)  By  writ  of  execution  if  the  decree  is  for  money; 

(2)  By  a  sale  of  the  property  under  a  master  commis- 

sioner in  other  cases. 

(b)  Against  the  parties  themselves  when  the  purpose  of  the 

suit  is  to  compel  some  specific  act  by  them. 

An  equity  decree  may,  under  some  circumstances,  be  en- 
forced against  the  property  of  the  parties,  and,  under  others, 

48  City  of  New  Orleans  v.  Warner,  ISO  U.  S.  199,  21  Sup.  Ct  353, 
45  L.  Ed.  493. 

4»  Central  Trust  Co.  v.  Railroad  Co.  (C.  C.)  89  Fed.  761. 
»o  Central  Trust  Co.  v.  Railway  Co.  (C.  C.)  75  Fed.  41. 
•i  Rule  86. 

Hughes  Fed.Jur. — 27 


41S  PROCEDURE ORIGINAL    JURISDICTION.  (Cll.  l'J 

against  the  parties  themselves,  and  it  must  be  considered  under 
these  two  distinctions. 

(a)  Against  Property  of  Parties. 

Final  process  to  execute  a  decree,  if  it  is  for  money,  is  by 
writ  of  execution  in  the  form  used  in  the  circuit  court  in  ac- 
tions of  assumpsit.02 

If  the  decree  is  not  simply  for  money,  but  contemplates  the 
sale  of  property  under  control  of  the  court,  its  method  of  en- 
forcement is  the  appointment  of  a  standing  or  special  master 
to  conduct  the  sale.  It  is  usual  to  require  a  bond  of  such  an 
officer,  but  is  not  necessary,  for  frequently  the  provisions  of  the 
decree  are  such  that  the  master  does  not  handle  the  money, 
which  is  paid  into  court  or  otherwise  provided  for.53 

By  Sale. 

A  recent  act  has  made  many  provisions  in  reference  to  sales 
of  property  in  the  federal  courts  which  it  is  important  to  ob- 
serve.   It  is  the  act  of  March  3,  1893,  and  is  as  follows :  54 

"Be  it  enacted,"  etc.,  "that  all  real  estate  or  any  interest  in 
land  sold  under  any  order  or  decree  of  any  United  States  court 
shall  be  sold  at  public  sale  at  the  courthouse  of  the  county,  par- 
ish, or  city  in  which  the  property,  or  the  greater  part  thereof,  is 
located,  or  upon  the  premises,  as  the  court  rendering  such  or- 
der or  decree  of  sale  may  direct. 

"Sec.  2.  That  all  personal  property  sold  under  any  order  or 
decree  of  any  court  of  the  United  States  shall  be  sold  as  provid- 
ed in  the  first  section  of  this  act,  unless,  in  the  opinion  of  the 
court  rendering  such  order  or  decree,  it  would  be  best  to  sell  it 
in  some  other  manner. 

"Sec.  3.  That  hereafter  no  sale  of  real  estate  under  any  or- 
der, judgment,  or  decree  of  any  United  States  court  shall  be 
had  without  previous  publication  of  notices  of  such  proposed 
sale  being  ordered  and  had  once  a  week  for  at  least  four 


«  Rule  8. 

es  Seaman  v.  Insurance  Co.,  86  Fed.  493,  30  C.  C.  A.  212. 

e*  27  Stat.  751,  e.  225  [U.  S.  Comp.  St.  1901,  p.  710]. 


§  171)  THE    DECREE.  419 

weeks  prior  to  such  sale  in  at  least  one  newspaper  printed, 
regularly  issued  and  having  a  general  circulation  in  the  coun- 
ty and  state  where  the  real  estate  proposed  to  be  sold  is  situ- 
ated, if  such  there  be.  If  said  property  shall  be  situated  in 
more  than  one  county  or  state,  such  notice  shall  be  published 
in  such  of  the  counties  where  said  property  is  situated,  as  the 
court  may  direct.  Said  notice  shall,  among  other  things,  de- 
scribe the  real  estate  to  be  sold.  The  court  may,  in  its  discre- 
tion, direct  the  publication  of  the  notice  of  sale  herein  provid- 
ed for  to  be  made  in  such  other  papers  as  may  seem  proper." 

This  statute,  however,  has  been  construed  to  be  intended  as  a 
safeguard  for  the  protection  of  the  defendant,  from  which  it 
follows  that  its  provisions  may  be  waived  by  him  either  ex- 
pressly or  impliedly.  Hence  when  a  sale  was  conducted  not 
in  strict  accordance  with  its  terms,  but  was  confirmed  after  no- 
tice to  the  defendant,  and  no  objection  by  him,  it  was  held 
to  be  valid." 

Sales  of  Real  Estate. 

It  is  an  interesting  and  important  question  whether  Con- 
gress intended  by  the  first  section  of  this  act  to  require  that 
sales  of  real  estate  should  only  be  by  public  auction.  Courts  of 
chancery  prior  to  its  enactment  had  exercised  a  general  power 
in  selling  property  in  other  ways  than  by  public  auction,  where 
those  other  ways  were  likely  to  realize  a  better  price.  The 
practice  of  calling  for  sealed  bids,  for  instance,  was  not  un- 
common. The  court  would  be  seriously  hampered  in  its  chan- 
cery proceedings  if  this  statute  was  intended  to  abolish  this 
practice ;  and,  notwithstanding  the  general  language  of  the 
first  section,  the  likelihood  is  that  Congress  meant,  not  that 
all  sales  should  be  at  public  auction,  but  that  all  sales  which 
were  at  public  auction  should  be  conducted  as  therein  provided. 

In  conducting  a  judicial  sale,  the  bid  of  an  intending  pur- 


85  Nevada  Nickel  Syndicate  v.  Nickel  Co.  (C.  C.)  103  Fed.  391;  Na- 
tional Nickel  Co.  v.  Syndicate  (C.  C.)  106  Fed.  111. 


420  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  19 

chaser  is  a  mere  offer,  and  the  court  may  accept  it  or  not,  as  it 
sees  fit.58 

A  bidder  at  the  judicial  sale  so  far  becomes  a  party  to  the 
cause  that  the  court  may  proceed  against  him  by  rule  to  com- 
pel his  compliance  with  his  contract,  and  it  is  not  necessary 
to  bring  a  separate  suit  against  him  for  the  price.57 

It  follows  from  the  above  that,  as  a  bid  is  a  mere  offer,  the 
court  may  set  the  sale  aside.  But  while  it  has  this  power, 
it  is  reluctant  to  use  it,  for  it  must  be  remembered  that  few 
parties  would  attend  judicial  sales  unless  they  have  some  as- 
surance that  the  sale  will  be  a  finality.  Hence  mere  inade- 
quacy of  price  is  not  sufficient  to  set  a  sale  aside,  unless  it  is  so 
great  as  to  shock  the  conscience ;  but  it  may  at  least  result 
in  the  court  looking  into  the  facts  more  closely,  and  finding 
other  grounds  for  refusing  to  confirm  the  sale.58 

(b)  Enforcement  against  the  Parties  Themselves. 

Equity  decrees  are  not  only  for  the  sale  of  property,  but 
frequently  for  the  purpose  of  compelling  some  specific  act  by 
the  parties  themselves.  Hence,  in  enforcing  such  orders,  equity 
must  have  some  power  to  proceed  against  the  parties  person- 
ally.   This  is  provided  by  equity  rule  8. 

It  may  Order  Conveyances  by  the  Party,  or  the  Delivery  up 
of  Deeds  or  Other  Documents. 
Where  at  least  a  part  of  the  property  is  within  the  jurisdic- 
tion of  the  court,  it  may  transfer  the  title  not  only  to  the  part 
within  its  jurisdiction,  but  also  to  that  part  without  it,  by 
ordering  a  master  to  make  a  deed  to  the  property.59 

8«  Camden  v.  Mayhew,  129  U.  S.  73,  9  Sup.  Ct.  246,  32  L.  Ed.  608; 
Tennessee  v.  Quintard,  80  Fed.  829,  26  C.  C.  A.  165. 

67  Stuart  v.  Gay,  127  U.  S.  518,  8  Sup.  Ct.  1279,  32  L.  Ed.  191; 
Camden  v.  Mayhew,  129  U.  S.  73,  9  Sup.  Ct.  246,  32  L.  Ed.  608. 

08  SCHROEDER  v.  YOUNG,  161  U.  S.  334,  16  Sup.  Ct  512,  40  L. 
Ed.  721;    Magann  v.  Segal,  92  Fed.  252,  34  C.  C.  A.  323. 

s»  MULLER  v.  DOWS,  94  U.  S.  444,  24  L.  Ed.  207;  Central  Trust 
Co.  v.  Railway  Co.  (C.  C.)  29  Fed.  618 ;   Boston  Safe  Deposit  &  Trust 


§  171)  THE   DECREE.  421 

In  this  respect  the  federal  courts  have  such  an  advantage 
over  the  local  tribunals  that  the  large  railway  foreclosures  gen- 
erally find  their  way  into  the  former  courts.  By  means  of  their 
jurisdiction  over  the  parties,  and  by  means  of  ancillary  bills 
filed  in  the  districts  where  the  realty  lies,  they  can  act  more 
promptly,  and  within  territory  unknown  to  the  local  tribunals. 

Compelling  Obedience  to  Order. 

The  federal  courts  will  not  only  order  conveyances,  but  they 
have  summary  means  of  compelling  obedience  to  their  orders. 
Under  the  provisions  of  rule  8,  if  the  defendant  can  be  found, 
a  writ  of  attachment  will  be  issued  against  him,  under  which 
he  will  be  held  until  he  complies  with  all  the  requirements  of 
the  court.  If  he  cannot  be  found,  a  writ  of  sequestration  may 
issue  against  all  his  property,  as  a  means  of  compelling  obe- 
dience. And  under  the  provisions  of  rule  9  the  writ  will  lie 
to  compe1  the  deliveiy  of  possession.  This  writ  is  a  proper 
me^ns  o^  putting  a  purchaser  at  a  mortgage  or  other  fore- 
closure sale  in  possession  of  the  property  purchased.80 

A  Fupp1ementary  bill  may  also  be  used  for  this  purpose  where 
a  writ  of  assistance  is  unavailing.61 

A  court  will  also  by  its  process  compel  restitution  of  property 
tc  the  paper  party.  Fo;  instance,  where  a  lower  court  de- 
cider1 in  favor  of  one  party,  and  the  case  was  afterwards  re- 
versed, fc  wa  held  that  the  lower  court  could  compel  the  party 
who  had  meanwhile  collected  the  money  to  pay  it  back,  although 
the  ground  of  reversal  was  lack  of  jurisdiction  in  the  lower 
court,  for  it  retained  at  least  enough  jurisdiction  to  undo  the 
wrong  that  it  had  done.62 

Co.  v.  Telegraph  Co.  (C.  C.)  36  Fed.  289 ;  Woodbury  v.  Railroad  Co.  (C. 
C.)  72  Fed.  371. 

eo  Terrell  v.  Allison,  21  Wall.  289.  22  L.  Ed.  634. 

6i  ROOT  v.  WOOL  WORTH,  150  U.  S.  401,  14  Sup.  Ct.  136,  37  L. 
Ed.  1123. 

6  2  Northwestern  Fuel  Co.  v.  Brock,  139  U.  S.  216,  11  Sup.  Ct  523, 
35  L.  Ed.  151. 


422  PROCEDURE ORIGINAL   JURISDICTION.  (Cll.  19 


SAME— REOPENING  OF  DECREE. 

172.  Decrees  may  be  reopened  on  motion,  by  petition  for  re- 
bearing,  and  by  bill  of  review,  according  to  tbe  nature 
of  tbe  grounds  on  which  application  is  made. 

Equity  rule  85  permits  the  correction  of  clerical  errors  in  de- 
crees at  any  time  before  they  are  actually  enrolled,  when  the 
matter  is  brought  to  the  attention  of  the  court  by  petition,  and 
in  such  case  a  rehearing  is  not  necessary. 

Equity  rule  88  provides  for  the  case  of  special  rehearings, 
and  is  as  follows :  "Every  petition  for  a  rehearing  shall  contain 
the  special  matter  or  cause  on  which  such  rehearing  is  ap- 
plied for,  shall  be  signed  by  counsel,  and  the  facts  therein 
stated,  if  not  apparent  on  the  record,  shall  be  verified  by  the 
oath  of  the  party,  or  by  some  other  person.  No  hearing  shall 
be  granted  after  the  term  at  which  the  final  decree  of  the  court 
shall  have  been  entered  and  recorded,  if  an  appeal  lies  to  the 
Supreme  Court.  But  if  no  appeal  lies,  the  petition  may  be  ad- 
mitted at  any  time  before  the  end  of  the  next  term  of  the 
court,  in  the  discretion  of  the  court."  •• 

It  is  not  sufficient  merely  to  file  a  petition  during  the  term 
named  by  the  above  rule.  Some  action  upon  the  petition  must 
be  taken  by  the  court  in  order  to  preserve  the  rights  of  the  par- 
ties.84 

Motion. 

Under  some  circumstances,  decrees  may  be  reopened  on  mo- 
tion. For  instance,  if  the  judge  has  been  deceived  by  counsel 
into  entering  an  order  which  he  did  not  intend  to  enter,  it  may 
be  set  aside  on  motion.65 

This  method  may  also  be  resorted  to  for  the  purpose  of  in- 

es  MOELLE  v.  SHERWOOD,  148  U.  S.  21,  13  Sup.  Ct.  426,  37 
L.  Ed.  350. 

«4  Graham  v.  Swayne,  109  Fed.  366,  48  C.  C.  A.  411. 
es  U.  S.  v.  Williams,  67  Fed.  3S4,  14  C.  C.  A.  440. 


§  172)  THE   DECREE.  423 

troducing  new  evidence  where  the  circumstances  of  the  case 
permit  such  introduction.86 

But  such  motion  will  usually  not  be  entertained  after  the 
close  of  the  term.61 

Bill  of  Review. 

A  common  method  of  avoiding  the  effect  of  final  decrees 
is  by  bill  of  review.  This  method,  however,  only  lies  for  sub- 
stantial error  of  law  apparent  on  the  face  of  the  record,  or  for 
new  matter  arising  since  the  entry  of  the  decree,  or  for  newly 
discovered  evidence  which  could  not  have  been  found  and  pro- 
duced by  the  use  of  reasonable  diligence  before  the  entry  of 
the  decree.68 

It  is  a  well-established  rule  of  the  federal  courts  that  a  bill 
of  review  for  errors  of  law  will  not  lie  at  any  time  after 
the  period  prescribed  for  an  appeal,  for  the  reason  that  there 
must  be  some  finality  to  litigation,  and  the  adoption  of  the  stat- 
utory limitations  in  regard  to  appeals  furnishes  a  good  point 
at  which  to  draw  the  line.69 

The  above  rules  in  relation  to  reopening  decrees  relate,  of 
course,  to  final  decrees.  Interlocutory  decrees  are  always  con- 
sidered in  the  breast  of  the  court. 

ee  Campbell  Printing-Press  &  Mfg.  Co.  v.  Marden  (C.  C.)  70  Fed. 
339. 

67  McGregor  v.  Trust  Co.,  104  Fed.  709,  44  C.  C.  A.  146. 

es  Hill  v.  Phelps,  101  Fed.  650,  41  C.  C.  A.  56;  Pittsburg,  0.,  C. 
&  St.  L.  Ry.  Co.  v.  Bridge  Co.,  107  Fed.  781,  46  C.  O.  A.  639. 

«»  Blythe  Co.  v.  Hinckley,  111  Fed.  827,  49  C.  C.  A.  647;  Gham- 
berlin  v.  Railway  Co.,  118  Fed.  32,  55  C.  C.  A.  54. 


424  APPELLATE    JURISDICTION.  (Ch.  20 


CHAPTER  XX. 

APPELLATE  JURISDICTION— THE  CIRCUIT  COURT  OP 
APPEALS. 

173.  The  Appellate  Courts. 

174.  The  Circuit  Court  of  Appeals — Its  Organization. 

175.  Jurisdiction  of  the  Circuit  Court  of  Appeals. 

176.  Same — Cases  Excepted  from  the  Jurisdiction  of  the  Circuit 

Court  of  Appeals. 

177.  Same — Instances  of  the  Jurisdiction. 

178.  Same — Cases  in  which  the  Decision  of  the  Circuit  Court  of 

Appeals  is  Final. 

179.  Same — Power  of  Circuit  Court  of  Appeals  to  Issue  Auxiliary 

Writs. 

THE  APPELLATE  COURTS. 

173.  The  federal  appellate  jurisdiction  is  vested  In  the  Su- 
preme Court  of  the  United  States  and  the  circuit  courts 
of  appeals  for  the  various  circuits,  and  is  divided  be- 
tween the  latter  class  and  the  Supreme  Court  in  ac- 
cordance with  regulations  fixed  by  law. 

The  Appellate  Jurisdiction  and  Its  Distribution  among 
the  Appellate  Courts. 

(1)  Original  Organisation. 

Until  1891  the  appellate  jurisdiction  of  the  federal  courts 
— leaving  out  of  view  the  courts  of  local  interest,  like  those  of 
the  District  of  Columbia — was  vested  in  the  circuit  court  and 
in  the  Supreme  Court.  The  appellate  jurisdiction  of  the  form- 
er was  restricted  to  a  few  special  classes  of  cases,  while  that 
of  the  latter  constituted  the  great  mass  of  litigation  that  found 
its  way  into  the  federal  courts.  This  system  worked  satisfac- 
torily until  the  beginning  of  the  Civil  War.  Up  to  that  time 
a  small  limit  as  to  amount  was  all  that  was  necessary  to  en- 
able the  Supreme  Court  to  handle  all  the  appellate  business 
which  had  been  entrusted  to  it.     There  were  many  cases,  how- 


§  173)  THE  APPELLATE  COURTS.  425 

ever,  as  to  which  there  was  no  appeal  at  all — some  of  them  of 
great  importance,  like  criminal  cases. 

The  great  growth  of  the  country,  and  especially  the  increas- 
ing importance  of  the  federal  courts  due  to  the  new  questions 
springing  out  of  the  Civil  War,  brought  it  to  pass  at  its  close 
that  the  Supreme  Court  could  not  attend  to  the  appellate  juris- 
diction which  had  been  conferred  upon  it.  Long  delays  be- 
came inevitable,  with  all  their  attendant  inconvenience  to  the 
litigants.  This  delay  was  the  subject  of  much  discussion,  and 
many  plans  of  relief,  but  nothing  definite  was  accomplished 
until  1875,  when  an  attempt  was  made  to  relieve  the  Supreme 
Court  by  raising  the  limit  necessary  in  appeals  to  five  thousand 
dollars,  instead  of  two  thousand,  as  had  been  the  previous 
amount.  This  temporary  expedient,  however,  failed  of  its  pur- 
pose, for  not  only  had  the  volume  of  litigation  immensely  in- 
creased, but  its  character.  The  result  was  that  the  Supreme 
Court,  in  spite  of  its  struggles  against  the  ever  accumulating 
mass  of  appeals,  found  itself  hopelessly  in  arrears,  so  that  it  re- 
quired from  three  to  five  years  to  secure  a  hearing  of  an  appeal. 
This  was  offering  a  premium  to  delays,  and  put  it  in  the  power 
of  litigants  to  force  disadvantageous  compromises  on  the  suc- 
cessful party,  or  keep  him  out  of  the  fruits  of  his  litigation, 
even  in  cases  where  the  appeal  had  no  merit.  The  discussion 
of  the  proper  measure  of  relief  continued,  but  resulted  in. noth- 
ing tangible   until   1891. 

(2)  Present  Organization. 

By  the  act  of  March  3,  1891,1  the  whole  system  of  appeals 
was  remodeled,  the  jurisdiction  formerly  vested  in  the  appel- 
late courts  redistributed,  and  appeals  given  in  classes  where 
before  no  appeal  was  available.  The  object  of  the  act  is  well 
expressed  in  the  case  of  American  Const.  Co.  v.  Jacksonville, 
T.  &  K.  W.  Ry.  Co.2  In  it  the  Supreme  Court  said :  "The 
primary  object  of  this  act,  well  known  as  a  matter  of  public 

i  26  Stat.  826,  e.  517  [U.  S.  Comp.  St.  1901,  p.  547]. 
*  148  U.  S.  372,  382,  13  Sup.  C*.  758,  37  L.  Ed.  486. 


42G  APPELLATE    JURISDICTION.  (Ch.  20 

history,  manifest  on  the  face  of  the  act,  and  judicially  declared 
in  the  leading  cases  under  it,  was  to  relieve  this  court  of  the 
overburden  of  cases  and  of  controversies,  arising  from  the 
rapid  growth  of  the  country,  and  the  steady  increase  of  litiga- 
tion ;  and,  for  the  accomplishment  of  this  object,  to  transfer 
a  large  part  of  its  appellate  jurisdiction  to  the  circuit  courts 
of  appeals  thereby  established  in  each  judicial  circuit,  and  to 
distribute  between  this  court  and  those,  according  to  the  scheme 
of  the  act,  the  entire  appellate  jurisdiction  from  the  circuit 
and  district  courts  of  the  United  States.  *  *  *  The  act 
has  uniformly  been  so  construed  and  applied  by  this  court  as 
to  promote  its  general  purpose  of  lessening  the  burden  of  liti- 
gation in  this  court,  transferring  the  appellate  jurisdiction  in 
large  classes  of  cases  to  the  circuit  court  of  appeals,  and  making 
the  judgments  of  that  court  final,  except  in  extraordinary 
cases." 

The  scheme  of  this  act  was  to  establish  in  each  judicial  cir- 
cuit a  local  appellate  court,  to  be  called  the  United  States  cir- 
cuit court  of  appeals  of  that  circuit,  and  to  distribute  the  appel- 
late jurisdiction  between  these  local  courts  and  the  Supreme 
Court;  conferring  upon  the  former  the  great  mass  of  or- 
dinary litigation,  and  reserving  for  the  latter  questions  of  gen- 
eral or  national  interest,  with  certain  provisions  intended  to  pre- 
vent divergence  of  decisions  in  the  different  circuits. 

THE  CIRCUIT  COURT  OF  APPEALS— ITS  ORGANIZATION. 

174.  Every  judicial  circuit  has  an  appellate  court  called  the 
Circuit  Court  of  Appeals.  The  judges  who  may  hold 
this  court  are  the  Supreme  Court  justice  for  the  partic- 
ular circuit,  the  circuit  judges  for  the  circuit,  and  the 
district  judges  for  the  circuit  when  the  circuit  justice 
or  circuit  judges  cannot  sit;  any  two  of  these  judges 
constituting  a  quorum.  But  no  judge  who  sat  on  the 
trial  court  for  the  original  trial  of  a  cause  or  question 
can  sit  on  the  appellate  court  for  the  trial  of  the  appeal 
in  that  cause  or  question. 


§  174)       CIRCUIT   COURT   OF   APPEALS — ORGANIZATION.  427 

Prior  to  the  passage  of  this  act,  the  judges  competent  to 
hold  the  circuit  courts,  in  addition  to  the  district  judges,  were 
the  Supreme  Court  justice  assigned  to  that  special  circuit,  and 
the  circuit  judge  for  that  circuit.  The  act  added  a  new  circuit 
judge  to  each  circuit,  on  the  idea  that  the  court  was,  in  the 
first  instance,  to  be  composed  of  the  circuit  justice  for  that 
circuit  and  the  two  circuit  judges  of  the  circuit ;  but  as  it  was 
realized  that  the  attendance  of  the  circuit  justices  would  neces- 
sarily be  very  uncertain,  and,  further,  that  the  circuit  judges 
would  be  frequently  disqualified  by  reason  of  having  sat  in  the 
circuit  court,  it  was  also  provided  that  the  district  judges  com- 
prised within  that  circuit  should  be  competent  to  sit  upon  this 
local  appellate  court.  Two  judges,  however,  constituted  a 
quorum.  Thus  the  court  is  a  very  changeable  one — a  fact 
which  has  not  been  to  its  advantage,  as  unity  of  practice  and  de- 
cision is  much  harder  with  a  changing  court  than  with  one  com- 
posed all  the  time  of  the  same  members. 

The  district  judges  are  only  called  to  sit,  under  the  provi- 
sions of  the  third  section  of  the  act,  when  the  associate  jus- 
tice and  the  circuit  judges  are  not  all  present,  and  the  dis- 
trict judges  in  such  case  may  be  called  either  by  general  or 
particular  assignment.  The  third  section,  however,  expressly 
provides  that  no  justice  or  judge  before  whom  a  cause  or 
question  may  have  been  tried  or  heard  in  a  district  court  or  ex- 
isting circuit  court  shall  sit  on  the  trial  or  hearing  of  such 
cause  or  question  in  the  circuit  court  of  appeals. 

In  the  case  of  Moran  v.  Dillingham  3  the  Supreme  Court 
strongly  intimates  that  under  this  provision  a  judge  who  has 
sat  in  the  case  is  disqualified  in  the  appellate  court  from  hear- 
ing the  case  or  any  part  of  it ;  and,  as  the  object  of  the  act  is 
to  furnish  an  appellate  court  of  judges  absolutely  uncommit- 
ted, this  would  certainly  seem  to  be  its  natural  construction. 
However  that  may  be,  a  judge  who  has  heard  the  case  on  its 
merits  cannot  sit  in  the  appellate  court  on  any  question  involved 

s  174  U.  S.  153,  157,  19  Sup.  Ct.  620,  43  L.  Ed.  930. 


42S  APPELLATE    JURISDICTION.  (Ch.  20 

in  it;  and  a  judge  who  has  heard  any  single  question  in  the 
case  cannot  sit  in  the  appellate  court  on  the  hearing  of  that 
question,  or  any  other  question  immediately  dependent  upon  it, 
and  the  effect  of  his  so  sitting  will  be  that  the  case  will  be  re- 
versed, regardless  of  the  merits  of  the  decision. 

JURISDICTION  OF  THE  CIRCUIT  COURT  OF  APPEALS. 

175.  All  final  decisions  of  the  district  op  circuit  courts,  ex- 
cept those  special  jurisdictional,  criminal,  interna- 
tional, and  constitutional  questions  intrusted  to  the 
Supreme  Court,  are  reviewable  in  the  circuit  court  of 
appeals. 

The  jurisdiction  of  the  circuit  court  of  appeals  is  denned  by 
the  sixth  section  of  the  act  regulating  the  federal  appellate  ju- 
risdiction, which  provides  as  follows:  "The  circuit  courts  of 
appeals  established  by  this  act  shall  exercise  appellate  jurisdic- 
tion to  review  by  appeal  or  by  writ  of  error  final  decision  in  the 
district  court,  and  the  existing  circuit  courts  in  all  cases  other 
than  those  provided  for  in  the  preceding  section  of  this  act, 
unless  otherwise  provided  by  law,  and  the  judgments  or  de- 
crees of  the  circuit  courts  of  appeals  shall  be  final  in  all  cases 
in  which  the  jurisdiction  is  dependent  entirely  upon  the  op- 
posite parties  to  the  suit  or  controversy  being  aliens  and  citi- 
zens of  the  United  States  or  citizens  of  different  states;  also 
in  all  cases  arising  under  the  patent  laws,  under  the  revenue 
laws,  and  under  the  criminal  laws  and  in  admiralty  cases,  ex- 
cepting that  in  every  such  subject  within  its  appellate  jurisdic- 
tion the  circuit  court  of  appeals  at  any  time  may  certify  to  the 
Supreme  Court  of  the  United  States  any  questions  or  proposi- 
tions of  law  concerning  which  it  desires  the  instruction  of  that 
court  for  its  proper  decision.  And  thereupon  the  Supreme 
Court  may  either  give  its  instruction  on  the  questions  and 
propositions  certified  to  it,  which  shall  be  binding  upon  the 
circuit  court  of  appeals  in  such  case,  or  it  may  require  that  the 
whole  record  and  cause  may  be  sent  up  to  it  for  its  considera- 
tion,  and   thereupon   shall   decide  the  whole  matter  in   con- 


§  175)       JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS.  429 

troversy  in  the  same  manner  as  if  it  had  been  brought  there 
for  review  by  writ  of  error  or  appeal." 

No  Monetary  Amount. 

As  to  the  limits  of  this  jurisdiction,  it  should  be  observed  in 
the  first  place  that  there  is  no  limit  as  to  amount.  It  was  held 
in  one  case  4  that  the  limit  of  fifty  dollars  formerly  imposed  on 
appeals  in  equity  or  admiralty  from  the  district  courts  applied ; 
but  the  subsequent  case  of  The  Paquete  Habana,5  which  re- 
views the  earlier  statutes  as  to  the  amount  required  for  juris- 
diction, holds  that  there  is  no  monetary  limit  upon  appeals  to 
the  circuit  court  of  appeals.  The  reason  of  this  is  obvious. 
Under  the  present  federal  legislation  nearly  all  the  litigation 
in  the  circuit  court  has  a  limitation  of  $2,000,  applicable  to  the 
court  of  first  instance,  and  that  limitation  is  itself  sufficiently 
high  for  purposes  of  an  appeal.  The  classes  of  litigation  in- 
volving less  than  that  amount  are  self-corrective,  as  appeals  are 
not  often  taken  by  litigants,  on  account  of  the  expense,  where 
the  amount  involved  is  small. 

Subject-Matter. 

Now,  as  to  the  subject-matter  of  the  appellate  jurisdiction,  it 
covers  the  great  mass  of  litigation ;  appeals  to  that  court  being 
the  rule,  and  those  to  the  Supreme  Court  being  the  exception. 
It  will  be  observed  that  the  statute  above  quoted  uses  the  lan- 
guage that  the  appeal  shall  exist  "in  all  cases  other  than  those 
provided  for  in  the  preceding  section  of  this  act,  unless  other- 
wise provided  by  law";  and  it  has  been  held  that  this  latter 
clause  was  a  saving  clause  intended  to  keep  in  force  acts  con- 
temporaneous with  this  act  or  subsequent  thereto,  and  not  in- 
tended to  apply  to  previous  provisions  as  to  appeals,  as  that 
construction  would  nullify  the  whole  act.8 

4  North  American  Trading  &  Transportation  Co.  v.  Smith,  93  Fed. 
7,  35  C.  C.  A.  183. 

o  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L.  Ed.  320.  See,  also,  Kirby 
v.  Fountain  Co.,  194  U.  S.  141,  24  Sup.  Ct.  619,  48  L.  Ed.  911. 

«  Louisville  Public  Warehouse  Co.  v.  Collector,  49  Fed.  561,  1  C. 
C.  A.  371.  The  Paquete  Habana,  175  U.  S.  677,  G83,  20  Sup.  Ct 
290,  44  L.  Ed.  320. 


430  ArruLLATE  jurisdiction.  (Ch.  20 


SAME— CASES   EXCEPTED   FROM  THE   JURISDICTION   OF 
THE  CIRCUIT  COURT  OF  APPEALS. 

176.  Jurisdictional,  capital,  prize,  and  constitutional  ques- 
tions are  intrusted  to  the  Supreme  Court,  though  the 
circuit  court  of  appeals  may  acquire  cognizance  of 
cases  even  in  these  classes  when  questions  included 
therein  are  connected  in  the  case  with  other  questions 
over  'which  the  latter  court  has  jurisdiction. 

The  statute  above  quoted  gives  the  circuit  court  of  appeals 
jurisdiction  "in  all  cases  other  than  those  provided  for  in  the 
preceding  section  of  this  act" ;  hence  it  is  necessary,  in  order 
to  find  out  its  jurisdiction,  to  name  the  cases  excepted  by  the 
''preceding  section."    This  is  section  5,  and  provides  as  follows : 

"That  appeals  or  writs  of  error  may  be  taken  from  the 
district  courts  or  from  the  existing  circuit  courts,  direct  to  the 
Supreme  Court  in  the  following  cases: 

"(a)  In  any  case  in  which  the  jurisdiction  of  the  court  is 
in  issue,  in  such  cases  the  question  of  jurisdiction  alone  shall  be 
certified  to  the  Supreme  Court  from  the  court  below  for  de- 
cision. 

"(b)  From  the  final  sentences  and  decrees  in  prize  causes. 

"(c)  In  cases  of  conviction  of  a  capital  crime. 

"(d)  In  any  case  that  involves  the  construction  or  application 
of  the  Constitution  of  the  United  States. 

"(e)  In  any  case  in  which  the  constitutionality  of  any  law  of 
the  United  States,  or  the  validity  or  construction  of  any 
treaty  made  under  its  authority,  is  drawn  in  question. 

'(f)  In  any  case  in  which  the  constitution  or  law  of  a  state 
Js  claimed  to  be  in  contravention  of  the  Constitution  of  the  Unit- 
ed States." 

Thus  these  two  sections  distribute  the  jurisdiction  between 
the  circuit  courts  of  appeals  and  the  Supreme  Court  on  the 
general  idea  of  conferring  all  the  jurisdiction  upon  the  circuit 
court  of  appeals,  except  jurisdictional,  constitutional,  or  inter- 
national questions,  or  convictions  of  capital  crimes. 


§  176)       JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS.  431 

Instances  of  Cases  Cognisable  by  the  Circuit  Court  of  Appeals. 

It  will  be  observed  that  questions  of  jurisdiction  of  the  trial 
court  are  to  be  taken  to  the  Supreme  Court  by  certificate.  The 
question  what  constitutes  jurisdiction,  in  the  sense  of  this  act, 
is  difficult  of  definition.  Perhaps  no  clearer  illustration  can 
be  given  than  the  language  of  Judge  Brown  in  an  admiralty 
case.7  In  it  he  said:  "Jurisdiction  is  the  power  to  adjudicate 
a  case  upon  the  merits,  and  dispose  of  it  as  justice  may  require. 
As  applied  to  a  suit  in  rem  for  the  breach  of  a  maritime  con- 
tract, it  presupposes,  first,  that  the  contract  sued  upon  is  a  mari- 
time contract ;  and,  second,  that  the  property  proceeded  against 
is  within  the  lawful  custody  of  the  court.  These  are  the  only 
requirements  necessary  to  give  jurisdiction.  Proper  cogni- 
zance of  the  parties  and  subject-matter  being  conceded,  all  oth- 
er matters  belong  to  the  merits." 

Accordingly  he  held  that  the  question  whether  a  seaman  had 
a  lien  upon  a  vessel  for  wages  accrued  while  a  receiver  was  op- 
erating it,  and  whether  he  could  assert  such  lien  against  the 
purchaser  of  the  vessel  after  it  had  left  the  custody  of  the  re- 
ceiver, was  not  a  question  of  jurisdiction.  So,  too,  the  question 
whether  the  defendant  in  an  involuntary  bankruptcy  proceed- 
ing was  engaged  chiefly  in  farming  is  not  a  question  of  juris- 
diction, but  a  defense  going  to  the  merits.8  So,  too,  in  a  pro- 
ceeding by  contempt,  the  question  whether  the  facts  shown 
made  out  a  case  of  contempt  is  a  question  that  went  to  the 
merits,  and  not  to  the  jurisdiction,  for  the  court  had  admitted 
jurisdiction  over  the  person  and  over  the  subject-matter  of 
contempts.9  And  the  jurisdiction  alluded  to  in  this  act  means 
the  jurisdiction  in  the  case  from  which  the  appeal  is  taken,  not 
the  jurisdiction  in  another  case  out  of  which  this  case  grew.10 
So,  too,  it  is  clear  that  "jurisdiction"  is  not  synonymous  with 

t  The  Resolute,  168  U.  S.  437,  18  Sup.  Ct.  112,  42  L.  Ed.  533. 
s  Denver  First  Nat.  Bank  v.  Klug,  186  U.  S.  202,  22  Sup.  Ct.  899, 
46  L.  Ed.  1127. 

»  O'Neal  v.  U.  S.,  190  U.  S.  36,  23  Sup.  Ct.  776,  47  L.  Ed.  945. 

io  Ex  parte  Lennon,  150  U.  S.  393,  14  Sup.  Ct.  123,  37  L.  Ed.  112a 


432  APPELLATE    JURISDICTION.  (Ch.  20 

"authority."  For  instance,  a  receiver  filed  a  petition  for 
the  settlement  of  his  accounts,  and  the  payment  of  certain 
costs  and  expenses,  which  petition  was  denied.  The  conten- 
tion that  the  court  had  no  authority  to  require  him  to  pay  these 
costs  and  expenses  was  held  not  to  be  a  jurisdictional  ques- 
tion.11 

The  jurisdiction  referred  to  in  this  connection  means  the 
jurisdiction  of  the  court  as  a  federal  court,  not  the  general 
jurisdiction  of  the  court  as  a  court.12  Hence,  where  the  de- 
fense to  a  suit  in  equity  is  that  the  court  had  no  jurisdiction  be- 
cause there  was  an  adequate  remedy  at  law,  but  there  was  no 
question  of  the  jurisdiction  as  a  federal  court,  it  is  held  that 
this  is  not  such  a  question  of  jurisdiction  as  goes  to  the  Su- 
preme Court  under  this  fifth  section,  but  the  appeal  in  such 
case  would  go  to  the  circuit  court  of  appeals.18 

Same — Jurisdiction  of  Circuit  Court  of  Appeals  When  Juris- 
dictional Questions  Are  Involved. 
Notwithstanding  the  provision  of  section  5  that  the  appeal 
shall  be  taken  to  the  Supreme  Court  when  the  jurisdiction  of 
the  court  is  in  issue,  there  are  many  circumstances  under  which 
the  circuit  court  of  appeals  can  consider  jurisdictional  ques- 
tions. This  must  first  be  discussed  in  connection  with  appeals 
by  defendant.  Suppose  that  in  such  a  case  the  defendant  pleads 
to  the  jurisdiction,  and  his  plea  is  decided  against  him.  He  can- 
not then  appeal  to  the  Supreme  Court,  for  that  would  not  be 
a  final  decree.  The  court  would  overrule  his  plea,  and  proceed 
with  the  case.  If  it  is  finally  decided  against  him  on  the  mer- 
its, then  he  has  an  election  either  to  take  the  jurisdictional 

11  Chapman  v.  Trust  Co.,  119  Fed.  257,  56  C.  C.  A.  61. 

12  Louisville  Trust  Co.  v.  Knott,  191  U.  S.  225,  24  Sup.  Ct.  119, 
48  L.  Ed.  159 ;  Bache  v.  Hunt,  193  U.  S.  523,  24  Sup.  Ct.  547,  48  L. 
Ed.  774. 

13  SMITH  v.  McKAY,  161  TJ.  S.  355,  16  Sup.  Ct.  490,  40  L.  Ed.  731; 
Blythe  v.  Hinckley,  173  U.  S.  501,  19  Sup.  Ct.  497,  43  L.  Ed.  783; 
Mexican  Cent.  R.  Co.  v.  Eckman,  187  U.  S.  429,  23  Sup.  Ct  211,  47 
L.  Ed.  245. 


§  176)       JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS.  133 

question  alone  to  the  Supreme  Court,  and  have  it  decided  there, 
or  to  appeal  the  whole  case  from  the  final  decree  on  the  merits 
to  the  circuit  court  of  appeals.  In  such  case,  the  latter,  having 
acquired  jurisdiction  by  reason  of  the  appeal  of  the  whole  case, 
can  consider  the  question  of  jurisdiction  of  the  lower  court,  for 
such  question  is  necessarily  involved  in  disposing  of  the  whole 
case.  In  such  case,  however,  it  may,  in  its  discretion,  certify 
the  question  of  jurisdiction  up  to  the  Supreme  Court  under 
the  clause  in  the  act  giving  it  the  right  to  ask  the  instruction  of 
the  Supreme  Court  on  any  question  arising  in  a  case,  or  the  Su- 
preme Court  itself  may  issue  its  writ  of  certiorari  to  the  cir- 
cuit court  of  appeals,  and  bring  up  the  whole  case.14 

The  question  of  jurisdiction  may  also  be  complicated  with 
other  questions  on  appeals  by  the  plaintiff,  and  under  certain 
circumstpnces  the  circuit  court  of  appeals  can  consider  such  a 
question.  Suppose  the  trial  court  decides  that  it  has  no  juris- 
diction. That  is  a  final  decree,  and  in  such  case  the  plaintiff 
must  go  straight  to  the  Supreme  Court  on  a  certificate  of  the 
jurisdictional  question.  Suppose,  on  the  other  hand,  that  the 
lower  court  decides  in^  favor  of  its  jurisdiction ;  that  the  case 
proceeds  on  its  merits,  and  is  decided  in  favor  of  the  defendant 
on  the  merits.  In  such  case  the  plaintiff  takes  the  whole  case 
to  the  circuit  court  of  appeals,  for  he  cannot  complain  of  a  de- 
cision upholding  the  jurisdiction,  and  his  only  ground  of  com- 
plaint is  the  action  of  the  court  on  the  merits'.  In  such  case  the 
circuit  court  of  appeals  may,  in  its  discretion,  certify  the  ques- 
tion of  jurisdiction  to  the  Supreme  Court. 

Suppose,  again,  that  the  jurisdiction  is  sustained;  that  the 
case  goes  on  to  trial,  and  is  finally  decided  for  the  plaintiff,  but 
for  a  less  amount  than  he  claims.  In  such  case,  if  the  defend- 
ant has  taken  an  appeal  to  the  circuit  court  of  appeals,  the 
plaintiff  can  take  a  cross-appeal  to  the  same  court.  If  the  de- 
fendant has  gone  to  the  Supreme  Court  on  the  jurisdictional 
question,  the  plaintiff  can  appeal  independently  to  the  circuit 

14  McLish  v.  Roff,  141  U.  S.  661,  12  Sup.  Ct.  118,  35  L.  Ed.  893; 
U.  S.  v.  JAHN,  155  U.  S.  109,  15  Sup.  Ct.  39,  39  L.  Ed.  87. 
Hughes  Fed.Jue. — 28 


434  APPELLATE   JURISDICTION.  (Ch.  20 

court  of  appeals ;  but  in  such  case  the  latter  court  will  suspend 
action  until  the  Supreme  Court  has  decided  the  question  of  ju- 
risdiction on  the  defendant's  appeal.15 

It  is  important  to  observe,  also,  that  the  Supreme  Court  can 
consider  the  question  of  jurisdiction  in  such  case  only  on  cer- 
tificate, and,  if  the  case  has  been  taken  to  the  circuit  court  of 
appeals,  the  Supreme  Court  will  not  consider  an  appeal,  even 
though  it  would  otherwise  have  jurisdiction  by  virtue  of  some 
of  the  other  clauses  of  section  5,  for  the  policy  of  the  law  is  in 
favor  of  only  one  appeal,  and  it  will  not  permit  separate  ap- 
peals to  the  circuit  court  of  appeals  and  the  Supreme  Court.16 

Same — Course  of  Appeal  when  Other  Classes  of  Section  5  Are 
in  Issue. 
The  only  class  of  the  fifth  section  which  requires  a  certificate 
taking  up  a  single  question  is  that  relating  to  jurisdiction.  In 
the  other  classes  named,  the  whole  case  goes  up.  Hence  the 
principles  which  regulate  the  course  of  appeal  in  these  cases  are 
a  little  different  from  those  already  discussed.  It  is  clear,  in  the 
first  place,  that  if  the  plaintiff's  own  pleading  shows  that  the 
case  turned  upon  any  of  the  questions  named  in  section 
5 — as,  for  instance,  a  federal  constitutional  question — the  ap- 
peal must  go  to  the  Supreme  Court  alone.17  It  is,  however, 
frequently  the  case  that  the  jurisdiction  is  invoked  in  the  first 
place  on  one  ground,  and  that  questions  of  this  character  sub- 
sequently arise.  For  instance,  suppose  the  plaintiff  bases  his 
right  of  suit  in  the  first  instance  in  his  pleadings  on  the  ground 
of  diverse  citizenship.    In  such  case,  under  section  6,  the  circuit 

15  U.  S.  v.  JAHN,  155  TJ.  S.  109,  15  Sup.  Ct.  39,  39  L.  Ed.  87; 
Anglo-American  Provision  Co.  v.  Provision  Co.,  191  TJ.  S.  376,  24 
Sup.  Ct.  93,  48  L.  Ed.  228. 

is  ROBINSON  v.  CALDWELL,  165  U.  S.  359,  17  Sup.  Ct.  343,  41 
L.  Ed.  745. 

17  Union  &  Planters'  Bank  v.  Memphis,  189  U.  S.  71,  23  Sup.  Ct. 
604,  47  L.  Ed.  712;  Spreckels  Sugar  Refining  Co.  v.  McClain,  192 
U.  S.  397,  24  Sup.  Ct  376,  48  L.  Ed.  496. 


§  J  76)       JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS.  435 

court  of  appeals,  if  that  were  the  only  question  involved,  would 
have  final  jurisdiction.  But  suppose  the  defendant  in  such  case 
raises  a  federal  constitutional  question  in  his  plea  or  answer,  or 
such  a  question  arises  in  some  subsequent  stage  of  the  case. 
Under  such  circumstances,  the  case  could  be  taken  to  the  circuit 
court  of  appeals,  because  the  original  ground  of  jurisdiction 
was  diverse  citizenship,  or  it  could  be  taken  first  to  the  Su- 
preme Court,  if  this  subsequent  question  was  a  pivotal  ques- 
tion in  the  case,  but  the  litigant  cannot  do  both,  one  appeal  be- 
ing his  limit.18  If,  however,  the  question  is  a  different  one 
from  those  enumerated  in  section  5 — as,  for  instance,  a  case 
turning  upon  conflicting  state  land  grants — the  appeal 
is  to  the  circuit  court  of  appeals  alone.19  But  if  the  jurisdic- 
tion in  the  first  instance  was  not  based  solely  on  diverse  citizen- 
ship, the  decision  in  the  circuit  court  of  appeals  is  not  final.20 
If  the  constitutional  question  on  which  the  jurisdiction  of  the 
trial  court  is  invoked  is  decided  in  plaintiff's  favor,  but  the  main 
case  against  him,  he  must  appeal  to  the  circuit  court  of  appeals, 
not  to  the  Supreme  Court,  for  an  appeal  by  him  in  such  case 
would  involve  no  constitutional  question.21 

is  American  Sugar  Refining  Co.  v.  New  Orleans,  181  U.  S.  277, 
21  Sup.  Ct.  646,  45  L.  Ed.  859;  HTJGTJLEY  MFG.  CO.  v.  COTTON 
MILLS,  184  U.  S.  290,  22  Sup.  Ct.  452,  46  L.  Ed.  546;  Ayres  v.  Pols- 
dorfer,  187  U.  S.  585,  23  Sup.  Ct.  196,  47  L.  Ed.  314;  Keyser  v. 
Lowell,  117  Fed.  400,  54  C.  C.  A.  574;  Watkins  v.  King,  118  Fed. 
524,  55  C.  C.  A.  290. 

19  Ayres  v.  Polsdorfer,  187  U.  S.  585,  23  Sup.  Ct.  196,  47  L.  Ed.  314. 

20  HTJGTJLEY  MFG.  CO.  v.  COTTON  MILLS,  184  U.  S.  290,  22 
Sup.  Ct.  452,  46  L.  Ed.  546;  Northern  Pac.  R.  Co.  v.  Soderberg,  188 
U.  S.  526,  23  Sup.  Ct.  365,  47  L.  Ed.  575 ;  Spreckels  Sugar  Refining 
Co.  v.  McClain,  192  U.  S.  397,  24  Sup.  Ct.  376,  48  L.  Ed.  496. 

21  Anglo-American  Provision  Co.  v.  Provision  Co.,  191  TJ.  S.  376, 
24  Sup.  Ct.  93,  48  L.  Ed.  228. 


436  APPELLATE    JURISDICTION.  (Ch.  20 


SAME— INSTANCES  OF  THE  JURISDICTION. 

177.    The  following  are  important  instances  in  which  the  cir- 
cuit court  of  appeals  exercises  appellate  jurisdiction: 

(a)  Certain  jurisdictional  questions. 

(b)  Certain  constitutional  or  treaty  questions  not  jurisdic- 

tional, named  in  the  act  of  March  3,  1891. 

(c)  Criminal  cases  not  capital. 

(d)  Habeas  corpus  cases. 

(e)  Bankruptcy  cases. 

(f)  Claims  against  the  United  States. 

(g)  Suits  by  the  United  States. 

(h)    Interstate  Commerce  Commission  cases. 

(i)    Appraiser's  decisions. 

(j)    Decisions  of  territorial  courts. 

(k)    Cases  depending  on  diverse  citizenship. 

(1)    Cases  involving  patent  laws. 

(m)    Cases  involving  revenue  laws. 

(n)    Admiralty  cases. 

In  any  of  the  above  named  instances  the  appeal  may  be  to 
the  Supreme  Court  of  the  United  States  when  any  of 
the  questions  mentioned  in  section  5  of  the  act  of 
March  3,  1891,  is  involved  in  the  case. 

In  bankruptcy  matters  the  circuit  court  of  appeals  has  a  gen- 
eral supervisory  appellate  jurisdiction  over  the  lower 
courts  in  matters  of  law.  It  has  appellate  jurisdiction 
by  appeal  or  writ  of  error 

(a)  From  a  judgment  adjudging  or  refusing  to  adjudge  the 

defendant  a  bankrupt; 

(b)  From  a  judgment  granting  or  denying  a  discharge; 

(c)  From  a  judgment  allowing  or  rejecting  a  debt  or  claim  of 

five  hundred  dollars  or  over. 

Jurisdiction  over  Criminal  Cases. 

The  act,  as  originally  drawn,  gave  jurisdiction  both  over 
cases  of  conviction  of  capital  crimes  and  of  infamous  offenses. 
This  was  amended  by  the  act  of  January  20,  1897.22  In  these 
cases  the  only  method  of  reviewing  the  decision  of  the  trial 

22  29  Stat  492,  c.  68  [U.  S.  Comp.  St.  1901,  p.  556]. 


§  177)       JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS.  437 

court  is  by  writ  of  error,  and  the  only  questions  reviewable  are 
questions  of  law.23 

The  test  of  jurisdiction  in  this  case  is  the  judgment  of  con- 
viction. If  the  accused  is  convicted  of  a  capital  crime,  the  case 
goes  to  the  Supreme  Court,  and  the  circuit  court  of  appeals 
has  no  jurisdiction,  even  though,  as  a  matter  of  fact,  the  death 
sentence  was  not  imposed.24  For  the  same  reason,  the  offense 
charged  is  not  the  test.  Hence,  if  the  indictment  is  for  con- 
spiracy, involving  a  charge  of  murder  in  aggravation,  but  the 
conviction  is  of  conspiracy  only,  the  circuit  court  of  appeals  has 
jurisdiction.36 

Appeals  in  Habeas  Corpus  Cases. 

Under  sections  763  and  764  of  the  Revised  Statutes,29  the 
appeal  from  a  district  court  decision  in  a  habeas  corpus  case 
went  to  the  circuit  court,  and  the  appeal  from  a  circuit  court  de- 
cision went  to  the  Supreme  Court.  By  the  act  of  March  3, 
1891,  as  has  been  seen,  the  appellate  jurisdiction  of  the  cir- 
cuit court  was  abolished ;  and  consequently  appeals  in  habeas 
corpus  cases,  both  from  the  district  court  and  the  circuit  court, 
go,  as  a  rule,  to  the  circuit  court  of  appeals.  In  such  cases 
pending  in  the  district  court,  an  appeal  would  lie  not  only  from 
an  order  of  the  court,  but  also  from  an  order  of  the  judge  at 
chambers.27  But  where  the  appeal  is  from  a  case  pending  in 
the  circuit  court,  it  only  lies  from  an  order  of  the  court,  and 
not  from  an  order  of  the  judge  at  chambers.28  The  reason  of 
this  difference  is  the  different  language  of  sections  763  and  764. 

But  while,  as  stated  above,  appeals  in  habeas  corpus  cases,  in 
the  absence  of  special  grounds  of  jurisdiction,  go  to  the  circuit 

as  Bucklin  v.  U.  S.,  159  U.  S.  680,  16  Sup.  Ct.  182,  40  L.  Ed.  304. 

24  Good  Shot  v.  U.  S.,  104  Fed.  257,  43  C.  C.  A.  525;  Id.,  179  U.  S. 
87,  21  Sup.  Ct  33,  45  L.  Ed.  101. 

2  5  Davis  v.  U.  S.,  107  Fed.  753,  46  C.  C.  A.  619. 

a«  U.  S.  Comp.  St.  1901,  pp.  594,  595. 

27  u.  S.  v.  Fowkes,  53  Fed.  13,  3  C.  C.  A.  394;  Webb  v.  York,  74 
Fed.  753,  21  C.  C.  A.  65. 

2  8  Ex  parte  Jacobi  (C.  C.)  104  Fed.  681. 


438  APPELLATE    JURISDICTION.  (Ch.  20 

court  of  appeals,  they  would  go  to  the  Supreme  Court  if  the 
case  turned  on  any  one  of  the  classes  set  forth  in  section  5  of 
the  act  of  March  3,  1891,  above  quoted ;  that  is,  cases  involving 
jurisdictional  questions,  certain  criminal  questions,  and  certain 
federal  questions.  The  result  of  this  is  that  many  of  these 
cases  necessarily  go  to  the  Supreme  Court,  for  the  classes  of 
habeas  corpus  cases  of  which  federal  courts  have  jurisdiction 
are  composed  largely  of  cases  involving  such  questions,  as  will 
be  seen  by  reference  to  section  753  of  the  Revised  Statutes.29 

Appeals  in  Bankruptcy. 

Quite  an  extensive  jurisdiction  is  vested  in  the  circuit  court 
of  appeals  by  virtue  of  the  provisions  of  the  bankrupt  law.  Sec- 
tions 24  and  25  of  that  act 30  provide  as  follows : 

"Sec.  24  (a)  The  Supreme  Court  of  the  United  States,  the 
circuit  courts  of  appeals  of  the  United  States  and  the  supreme 
courts  of  the  territories,  in  vacation  in  chambers  and  during 
their  respective  terms,  as  now  or  as  they  may  be  hereafter  held, 
are  hereby  invested  with  appellate  jurisdiction  of  controversies 
arising  in  bankruptcy  proceedings  from  the  courts  of  bank- 
ruptcy from  which  they  have  appellate  jurisdiction  in  other 
cases.  The  Supreme  Court  of  the  United  States  shall  exercise 
a  like  jurisdiction  from  courts  of  bankruptcy  not  within  any  or- 
ganized circuit  of  the  United  States,  and  from  the  supreme 
court  of  the  District  of  Columbia. 

"(b)  The  several  circuit  courts  of  appeal  shall  have  juris- 
diction in  equity,  either  interlocutory  or  final,  to  superintend 
and  revise  in  matter  of  law  the  proceedings  of  the  several  in- 
ferior courts  of  bankruptcy  within  their  jurisdiction.     Such 

a»  U.  S.  Comp.  St.  1901,  p.  592;  Cross  v.  Burke,  146  U.  S.  82,  13 
Sup.  Ct.  22,  36  L.  Ed.  896;  Ex  parte  Lennon,  150  U.  S.  393,  14  Sup. 
Ct.  123,  37  L.  Ed.  1120;  Craemer  v.  State,  1G8  U.  S.  124,  18  Sup. 
Ct.  1,  42  L.  Ed.  407;  Rice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  406, 
45  L.  Ed.  577;  Dimniick  v.  Tompkins,  194  U.  S.  540,  24  Sup.  Ct. 
7S0,  48  L.  Ed.  1110;  Pettit  v.  Walshe.  194  TJ.  S.  205,  24  Sup.  Ct. 
657,  45  L.  Ed.  938. 

30  U.  S.  Comp.  St.  1901,  pp.  3431,  3442. 


§  177)        JURISDICTION  OF  CIRCUIT  COURT  OP  APPEALS.  439 

power  shall  be  exercised  on  due  notice  and  petition  by  any 
party  aggrieved. 

"Sec.  25  (a)  That  appeals,  as  in  equity  cases,  may  be  taken  in 
bankruptcy  proceedings  from  the  courts  of  bankruptcy  to  the 
circuit  court  of  appeals  of  the  United  States,  and  to  the  supreme 
court  of  the  territories,  in  the  following  cases,  to  wit : 

"(1)  From  a  judgment  adjudging  or  refusing  to  adjudge 
the  defendant  a  bankrupt ; 

"(2)  From  a  judgment  granting  or  denying  a  discharge; 
and 

"(3)  From  a  judgment  allowing  or  rejecting  a  debt  or  claim 
of  five  hundred  dollars  or  over.  Such  appeal  shall  be  taken 
within  ten  days  after  the  judgment  appealed  from  has  been 
rendered,  and  may  be  heard  and  determined  by  the  appellate 
court  in  term  or  vacation,  as  the  case  may  be.     *     *     *" 

Same — Supervisory  Review. 

It  will  be  seen  from  these  sections  that  there  are  two 
methods  of  reviewing  the  action  of  the  lower  court  in  the  cir- 
cuit court  of  appeals — one  by  the  last  paragraph  of  section  24, 
which  is  an  informal  supervisory  power  of  review,  and  the 
other  under  the  provisions  of  section  25,  which  is  a  formal  ap- 
peal in  the  limited  cases  therein  specified. 

Considering  the  supervisory  power  first,  it  appears  that  only 
matters  of  law  can  be  reviewed  under  this  proceeding.31  In 
such  cases  the  decision  of  the  circuit  court  of  appeals  is  final, 
subject  only  to  the  issue  of  a  certiorari  provided  by  the  act 
of  March  3,  1891. 82  This  right  of  supervision,  however,  ex- 
tends only  to  bankruptcy  proceedings  proper.33  A  plenary  suit 
by  the  trustee  against  third  parties  is  not  such  an  order  of  ad- 

8i  Mueller  v.  Nugent,  184  U.  S.  1,  22  Sup.  Ct.  269,  46  L.  Ed.  403 ; 
ELLIOTT  v.  TOEPPNER,  187  U.  S.  327,  23  Sup.  Ct.  133,  47  L.  Ed. 
200;    IN  RE  EGGERT,  102  Fed.  735,  43  C.  C.  A.  1. 

3  2  HOLDEN  V.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct.  45,  48  L. 
Ed.  116. 

33  HOLDEN  T.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct  45,  48  L. 
Ed.  116. 


440  APPELLATE    JURISDICTION.  (Ch.  20 

ministration,  but  is  a  separate  suit,  and  is  not  reviewable  by  this 
process.34  On  the  other  hand,  a  claim  of  a  third  party  against 
a  fund  in  the  hands  of  a  trustee  is  a  bankruptcy  matter,  and  is 
reviewable  as  far  as  any  legal  questions  are  involved.85  So, 
too,  an  order  entered  by  the  bankruptcy  court  on  petition  of  a 
creditor  to  sell  the  bankrupt's  homestead  is  reviewable  as  an 
administration  order.36 

The  "proceedings  of  the  several  inferior  courts  of  bank- 
ruptcy within  their  jurisdiction"  mean  the  proceedings  of  the 
district  courts  within  the  territorial  jurisdiction  of  the  corre- 
sponding Circuit  Court  of  Appeals.37 

As  illustrations  of  the  legal  questions  reviewable,  it  has  been 
held  that  an  order  requiring  a  bankrupt  to  transfer  a  liquor 
license,  which  is  transferable,  with  the  consent  of  certain  gov- 
ernmental authorities,  under  the  state  law,  can  be  reviewed  as  to 
questions  of  law  in  this  proceeding.38  So  a  claim  of  ownership 
to  funds  in  trustee's  hands  is  reviewable  as  to  matters  of  law.39 

Where  the  question  involved  is  close  on  the  border  line  be- 
tween the  cases  reviewable  under  this  section  and  the  cases  ap- 
pealable under  the  next  section,  the  party  may  take  both  pro- 
ceedings, and  the  appellate  court  will  act  upon  the  one  which  it 
considers  the  proper  one.40  The  question  whether  a  creditor 
can  amend  his  specifications  in  opposition  to  the  bankrupt's 
discharge  is  reviewable  under  this  provision.41  As  to  the  form 
of  such  a  petition,  it  should  state  the  question  involved,  and  be 

s*  In  re  Rusch,  116  Fed.  270,  53  C.  C.  A.  631. 

se  Antigo  Screen  Door  Co.,  123  Fed.  249,  59  C.  C.  A.  248. 

86  Ingram  v.  Wilson,  125  Fed.  913,  60  C.  C.  A.  618. 

3t  In  re  Seehold,  105  Fed.  910,  45  C.  C.  A.  117. 

88  Fisher  v.  Cushman,  103  Fed.  860,  43  C.  C.  A.  381,  51  L.  R.  A. 
292. 

39  Hutchinson  v.  Le  Roy,  113  Fed.  202,  51  C.  C.  A.  159;  Same 
v.  Otis,  115  Fed.  937,  53  C.  C.  A.  419;  Id.,  190  U.  S.  552,  23  Sup.  Ct. 
778,  47  L.  Ed.  1179. 

<o  in  re  Worcester  Co.,  102  Fed.  808,  42  C.  C.  A.  637. 

4i  In  re  Carley,  117  Fed.  130,  55  C.  C.  A.  146. 


§  ITT)       JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS.  441 

accompanied  by  enough  of  the  record  in  the  case  to  show  how 
it  arose  and  was  determined.42 

Such  petition  should  be  filed  in  the  circuit  court  of  appeals, 
and  cannot  be  allowed,  nor  the  proceeding  matured,  by  the  dis- 
trict judge.*8 

Same — Procedure  by  Appeal  or  Writ  of  Error. 

Although  the  language  of  section  25  speaks  simply  of  ap- 
peals, the  Supreme  Court  has  held  that  a  writ  of  error  is  proper 
when  the  proceeding  appealed  from  in  its  nature  should  be 
taken  up  by  such  a  writ,  and  the  thirty-seventh*  bankruptcy  or- 
der expressly  provides:  "In  proceedings  in  equity,  instituted 
for  the  purpose  of  carrying  into  effect  the  provisions  of  the  act, 
or  for  enforcing  the  rights  and  remedies  given  by  it,  the  rules 
of  equity  practice  established  by  the  Supreme  Court  of  the 
United  States  shall  be  followed  as  nearly  as  may  be.  In  pro- 
ceedings at  law,  instituted  for  the  same  purpose,  the  practice 
and  procedure  in  case^  at  law  shall  be  followed  as  nearly  as  may 

be.     *     *     *" 

Accordingly,  when  the  procedure  has  involved  a  jury  trial, 
as  is  authorized  by  some  provisions  of  the  bankrupt  law,  it 
necessarily  follows  that  there  must  be  bills  of  exceptions,  and 
that  such  a  case  shall  be  taken  to  the  circuit  court  of  appeals, 
not  by  appeal,  but  by  writ  of  error.44 

The  appealable  cases  in  section  25  are,  as  appears  from  the 
quotation  above,  only  three  in  number.  The  first  of  these  is 
from  a  judgment  adjudging  or  refusing  to  adjudge  the  de- 
fendant a  bankrupt.45 

The  second  is  from  a  judgment  granting  or  denying  a  dis- 

42  Courier  Journal  Job  Printing  Co.  v.  Brewing  Co.,  101  Fed.  699, 
41  C.  C.  A.  614. 

*  s  in  re  Williams  (D.  C.)  105  Fed.  906. 

*  89  Fed.  xiv,  32  C.  C.  A.  xxxvi. 

44  Duncan  v.  Landis,  106  Fed.  839,  45  C.  C.  A.  666;  ELLIOTT  v 
TOEPPNER,  187  U.  S.  327,  23  Sup.  Ct.  133,  47  L.  Ed.  200. 

45  ELLIOTT  v.  TOEPPNER,  187  U.  S.  327,  23  Sup.  Ct  133,  47 
L.  Ed.  200. 


442  APPELLATE    JURISDICTION.  (Ch.  20 

charge.  The  case  of  In  re  Adler  46  holds  that  under  this  pro- 
vision an  appeal  from  an  order  refusing  to  confirm  or  confirm- 
ing a  composition  will  not  lie ;  but  in  the  case  of  U.  S.  v.  Ham- 
mond 4T  the  contrary  opinion  was  reached,  on  the  ground  that 
the  action  of  the  court  in  that  particular  settled  the  question 
of  discharge,  and  this  seems  to  be  based  on  better  reason. 
The  usual  presumptions  in  favor  of  the  action  of  an  inferior 
court  prevail  on  such  appeals.  Where  a  discharge  has  been 
refused  on  the  ground  of  fraud,  the  error  must  be  manifest 
before  there  will  be  a  reversal.48 

The  third  and  much  the  most  usual  class  of  appeals  is  from 
judgments  allowing  or  rejecting  a  debt  or  claim  of  five  hun- 
dred dollars  or  over.  This  means  a  money  demand,  not  a 
demand  for  specific  property.49 

If  the  only  question  about  the  debt  was  its  priority,  and  not 
its  validity,  the  procedure  would  have  to  be  by  review ;  B0  but, 
when  an  appeal  is  taken  from  the  allowance  or  rejection  of 
such  a  claim,  the  court  can,  as  incidental  to  that  appeal,  con- 
sider the  question  of  rank  or  lien.51 

The  appeal  may  be  taken  by  the  trustee  from  an  order  deny- 
ing his  motion  to  expunge  a  claim.52  In  one  case  53  it  was 
held  that  any  party  affected,  including  a  creditor  whose  divi- 
dend was  diminished,  could  take  an  appeal;  but  the  better 
opinion  is  that  the  trustee  represents  the  creditors  in  such  a 
matter,  and  that  only  he  can  take  such  an  appeal,  the  remedy 
of  objecting  creditors  being  an  application  to  the  court  to  re- 
quire an  appeal  by  the  trustee.54     The  right  of  appeal  under 

4  6  (D.  C.)  103  Fed.  444.  **  104  Fed.  862,  44  C.  C.  A.  229. 

*s  Osborne  v.  Perkins,  112  Fed.  127,  50  C.  C.  A.  158. 

4»  In  re  Whitener,  105  Fed.  180,  44  C.  C.  A.  434;  HOLDEN  v. 
STRATTON,  191  U.  S.  115,  24  Sup.  Ct  45,  48  L.  Ed.  116. 

so  in  re  Worcester  Co.,  102  Fed.  808,  42  C.  C.  A.  637. 

si  Cunningham  v.  Insurance  Bank,  103  Fed.  932,  43  C.  C.  A.  377; 
Hutchinson  v.  Otis,  190  U.  S.  552,  23  Sup.  Ct.  778,  47  L.  Ed.  1179. 

62  Livingstone  v.  Heineman,  120  Fed.  786,  57  C.  C.  A.  154. 

53  In  re  Roche,  101  Fed.  956,  42  C.  C.  A.  115. 

s*  Chatfleld  v.  O'Dwyer,  101  Fed.  797,  42  C.  C.  A.  30;  Foreman  v. 
Burleigh,  109  Fed.  313.  48  C.  C.  A.  376. 


§  177)       JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS.  443 

this  section  does  not  exist  in  contests  over  an  insurance  policy 

claimed  to  be  exempt,  as  that  is  not  one  of  the  enumerated 

classes.55 

Same — Claims  against  the  United  States  under  the  Tucker  Act 

of  March  3,  1887,  Authorizing  Suits  against  the  United 

States. 
In  the  classes  therein  enumerated,  the  course  of  appeal  is 
to  the  circuit  court  of  appeals,  unless  one  of.  the  questions 
named  in  section  5  of  the  act  of  March  3,  1891,  exists,  in  which 
case  it  goes  to  the  Supreme  Court.56 

This  question  has  been  touched  upon  in  the  chapter  which 
discusses  the  jurisdiction  of  the  courts  in  suits  against  the 
United  States,  to  which  reference  is  made.57 

Suits  by  the  United  States. 

Appeals  in  these  cases  also  go  to  the  circuit  court  of  appeals. 
In  U.  S.  v.  American  Bell  Telephone  Co.,58  which  was  a 
suit  to  cancel  a  patent,  the  Supreme  Court  held  that  the  cir- 
cuit court  of  appeals  had  appellate  jurisdiction  over  such  a  case, 
though  its  decision  would  not  be  final,  as  the  fact  that  the 
United  States  were  parties  gave  another  independent  ground 
of  jurisdiction,  and  prevented  the  case  from  turning  simply 
upon  the  question  that  it  was  a  suit  under  the  patent  laws. 
It  was  held  in  the  same  case  that  a  suit  to  cancel  a  patent  was 
not  a  suit  under  the  patent  laws  in  the  sense  in  which  it  was 
used  in  section  6  of  the  act  of  March  3,  1891. 

Interstate  Commerce  Commission  Cases. 

Appeals  by  parties  aggrieved  under  the  provisions  of  this 
act  also  go  to  the  circuit  court  of  appeals,  in  the  absence  of 
any  special  grounds  of  jurisdiction  in  the  Supreme  Court.59 

55  HOLDEN  v.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct.  45.  48  L. 
Ed.  116. 

56  u.  S.  v.  Harsha,  172  U.  S.  567,  19  Sup.  Ct.  294,  43  L.  Ed.  556; 
TJ.  S.  v.  Coudert,  73  Fed.  505,  19  C.  C.  A.  543;  Coudert  v.  U.  S., 
175  U.  S.  178,  20  Sup.  Ct.  56,  44  L.  Ed.  122. 

6T  Ante,  c.  9. 

us  159  U.  S.  548,  16  Sup.  Ct.  69,  40  L.  Ed.  255. 

59  Interstate  Commerce  Commission  v.  Railroad  Co.,  149  U.  S.  264, 


444  APPELLATE   JURISDICTION.  (Ch.  20 

Appeals  from  Decisions  of  Circuit  Court  Reviewing  Decisions 
of  Appraisers  under  Act  of  June  10,  1890. 
These  cases  go  to  the  circuit  court  of  appeals.80 

Appeals  from  Territorial  Courts. 

The  fifteenth  section  of  the  act  of  March  3,  1891,"  provides 
as  follows :  "That  the  circuit  court  of  appeal,  in  cases  in  which 
the  judgments  of  the  circuit  courts  of  appeal  are  made  final 
by  this  act  shall  have  the  same  appellate  jurisdiction,  by  writ 
of  error  or  appeal,  to  review  the  judgments,  orders  and  decrees 
of  the  Supreme  Courts  of  the  several  territories  as  by  this  act 
they  may  have  to  review  the  judgments,  orders  and  decrees 
of  the  district  court  and  circuit  courts;  and  for  that  purpose 
the  several  territories  shall,  by  orders  of  the  Supreme  Court 
to  be  made  from  time  to  time,  be  assigned  to  particular  cir- 
cuits." 

It  will  be  seen,  in  connection  with  the  jurisdiction  of  the 
Supreme  Court,  that  it  also  has  cognizance  of  many  appeals 
from  the  supreme  courts  of  the  territories.  But  in  the  cases 
where  the  decisions  of  the  circuit  courts  of  appeals,  if  taken 
up  from  the  district  or  circuit  courts,  would  be  final,  the  appeal 
would  lie  to  the  circuit  courts  of  appeals.  Appeals,  however, 
from  the  territorial  courts  in  cases  of  conviction  of  capital 
crimes,  would  not  go  to  the  circuit  courts  of  appeals.62 

13  Sup.  Ct.  837,  37  L.  Ed.  727;  Interstate  Commerce  Commission 
v.  Baird,  194  U.  S.  25,  24  Sup.  Ct.  563,  48  L.  Ed.  8G0. 

«o  Louisville  Public  Warehouse  Co.  v.  Collector,  49  Fed.  561,  1  C. 
C.  A.  371 ;  U.  S.  v.  Hopewell,  51  Fed.  798,  2  C.  C.  A.  510 ;  Same  v. 
Jahn,  155  U.  S.  109,  15  Sup.  Ct  39,  39  L.  Ed.  87 ;  Anglo-Californian 
Bank  v.  U.  S.,  175  U.  S.  37,  20  Sup.  Ct.  19,  44  L.  Ed.  64. 

«i  U.  S.  Comp.  St.  1901,  p.  554. 

•  a  Folsom  v.  U.  S.,  160  U.  S.  121,  16  Sup.  Ct.  222,  40  L.  Ed.  363. 


§  178)        JURISDICTION  OF  CIRCUIT  COURT  OF  APPEALS.  440 

SAME— CASES  IN  WHICH  THE  DECISION  OF  THE  CIRCUIT 
COURT  OF  APPEALS  IS  FINAL. 

178.  The   decision   of   the   circuit   court   of  appeals  is  final  in 
the  following  classes  of  cases  on  appeal: 

(a)  Cases  depending  on  diverse  citizenship. 

(b)  Cases  involving  patent  laws. 

(c)  Cases  involving  revenue  Laws. 

(d)  Criminal  cases. 

(e)  Admiralty  cases. 

Even  in  the  above  classes  of  cases,  however,  the  appeal  may 
be  to  the  Supreme  Court  of  the  United  States  when  any 
of  the  questions  mentioned  in  the  fifth  section  of  the 
act  of  March  3,  1891,  are  involved. 

These  are  enumerated  in  section  6  of  the  act  of  March  3, 
1891.6?  These  cases  are  as  follows:  "In  which  the  jurisdic- 
tion is  dependent  entirely  upon  the  opposite  parties  to  the  suit 
or  controversy,  being  aliens  and  citizens  of  the  United  States 
or  citizens  of  different  states ;  also  in  all  cases  arising  under 
the  patent  laws,  under  the  revenue  laws,  and  under  the  crim- 
inal laws  and  in  admiralty  cases." 

If,  however,  the  pleadings  show  that  the  ground  on  which 
the  case  is  based  and  on  which  it  turned  was  a  federal  ques- 
tion, but  not  one  of  those  enumerated  in  the  fifth  section,  then 
the  decision  of  the  circuit  court  of  appeals  is  not  final.84  But 
the  mere  fact  that  such  a  federal  question  might  have  been 
raised  does  not  prevent  the  decision  of  the  circuit  court  of 
appeals  from  being  final  when  it  was  not  actually  raised.65 

It  frequently  happens  that  jurisdiction  would  vest  in  the 
trial  court  in  the  first  instance  by  reason  of'  the  fact  of  diverse 
citizenship,  and  that  constitutional  questions  subsequently  arise 
in  the  case.     Under  these  circumstances,  if  the  court  acquired 

es  u.  S.  Comp.  St.  1901,  p.  550. 

6  4  FLORIDA  CENT.  &  P.  R.  CO.  v.  BELL,  176  U.  S.  321,  20  Sup. 
Ct.  399,  44  L.  Ed.  486. 

es  World's  Columbian  Exposition  v.  U.  S.,  56  Fed.  654,  6  C.  C. 
A.  58. 


446  ArPELLATE   JURISDICTION.  (Ch.  20 

jurisdiction  originally  on  the  ground  of  diverse  citizenship 
alone,  an  appeal  will  certainly  lie  to  the  circuit  court  of  ap- 
peals; and,  if  such  an  appeal  is  taken,  the  decision  of  that 
court  is  final.66 

The  Supreme  Court  also,  however,  would  have  jurisdiction 
if  a  constitutional  question  should  subsequently  arise,  even 
though  the  jurisdiction  originally  vested  on  the  ground  of 
diverse  citizenship,  for  it  could  not  have  been  the  intent  of 
Congress  to  deprive  it  of  the  right  to  pass  upon  such  a  ques- 
tion. The  only  qualification  is  that  the  litigant  cannot  take 
appeals  to  both  courts.67  A  suit  by  a  national  bank  against 
a  citizen  of  another  state  depends  on  diverse  citizenship,  and 
the  decision  of  the  circuit  court  of  appeals  is  final  in  such 
case.68 

Patent  Cases. 

This  is  one  of  the  class  in  which  the  decision  of  the  circuit 
court  of  appeals  is  made  final,  but  the  simple  fact  that  a  pat- 
ent may  come  before  the  court  in  litigation  does  not  make 
the  case  a  patent  case  under  such  circumstances.  The  cases 
included  in  this  description  have  been  described  by  the  Supreme 
Court  as  follows :  "Actions  at  law  for  infringement,  and 
suits  in  equity  for  infringement,  for  interference,  and  to  obtain 
patents,  are  suits  which  clearly  arise  under  the  patent  laws; 
being  brought  for  the  purpose  of  vindicating  rights  created 
by  those  laws,  and  coming  strictly  within  the  avowed  purpose 

6  6  Colorado  Cent.  Consol.  Min.  Co.  v.  Turck,  150  TJ.  S.  138,  14  Sup. 
Ct.  35,  37  L.  Ed.  1030;  Pope  v.  Railroad  Co.,  173  U.  S.  573,  19  Sup. 
Ct.  500,  43  L.  Ed.  814;  American  Sugar  Refining  Co.  v.  New  Or- 
leans, 181  U.  S.  277,  21  Sup.  Ct.  646,  45  L.  Ed.  859;  Keyser  v.  Low- 
ell, 117  Fed.  400.  54  C.  C.  A.  574;  Spencer  v.  Silk  Co.,  191  TJ.  S. 
526,  24  Sup.  CT  174,  48  L.  Ed.  287. 

67  Cincinnati,  H.  &  D.  Ry.  Co.  v.  Thiebaud,  177  TJ.  S.  615,  20  Sup. 
Ct.  822,  44  L.  Ed.  911;  American  Sugar  Refining  Co.  v.  New  Orleans, 
181  TJ.  S.  277,  21  Sup.  Ct.  646,  45  L.  Ed.  859. 

6  8  CONTINENTAL  NAT.  BANK  v.  BUFORD,  191  U.  S.  119,  24 
Sup.  Ct.  54,  48  L.  Ed.  119. 


§  178)        JURISDICTION  OP  CIRCUIT  COURT  OF  APPEALS.  447 

of  the  act  to  relieve  this  court  of  that  burden  of  litigation 
which  operated  to  impede  the  disposition  of  cases  of  peculiar 
gravity  and  general  importance.  We  are  of  opinion  that  it 
is  reasonable  to  assume  that  the  attention  of  Congress  was 
directed  to  this  class  of  cases,  and  that  the  language  was  used 
as  applicable  only  to  them."  69 

Accordingly  it  was  held  in  the  case  from  which  the  above 
quotation  is  taken  that  a  suit  by  the  United  States  to  cancel  a 
patent  as  improperly  issued  was  not  a  suit  "arising  under  the 
patent  laws,"  in  the  sense  of  this  act.  So,  too,  a  suit  to  enjoin 
the  collection  of  a  state  tax  on  a  patent  right  was  not  a  suit 
under  the  patent  laws,  but  was  a  suit  involving  the  validity  of 
a  state  statute,  and  hence  the  appeal  should  be  to  the  Supreme 
Court,  and  not  to  the  circuit  court  of  appeals.70 

Revenue  Laws. 

In  this  class  of  cases,  also,  the  decision  of  the  circuit  court 
of  appeals  is  made  final.  A  revenue  law  is  denned  by  the  Su-  " 
preme  Court  as  a  law  imposing  duties  on  imposts  or  tonnage, 
or  a  law  providing  in  terms  for  revenue ;  that  is  to  say,  a  law 
which  is  directly  traceable  to  the  power  granted  to  Congress 
by  section  8,  art.  1,  of  the  Constitution,  "to  lay  and  collect 
taxes,  duties,  imposts,  and  excises."  71  The  decision  of  the  cir- 
cuit court  reviewing  the  action  of  a  board  of  appraisers  under 
the  act  of  June  10,  1890,  is  reviewable  by  the  circuit  court  of 
appeals  as  a  revenue  law,  and  the  judgment  of  the  latter  court 
in  such  case  is  final.72 

6»  U.  S.  v.  Telephone  Co.,  159  U.  S.  548,  553,  554,  16  Sup.  Ct.  69,  40 
L.  Ed.  255. 

to  Holt  v.  Indiana  Mfg.  Co.,  80  Fed.  1,  25  C.  C.  A.  301;  Id.,  176 
U.  S.  68,  20  Sup.  Ct.  272,  44  L.  Ed.  374. 

7i  U.  S.  v.  Hill,  123  U.  S.  681,  8  Sup.  Ct.  308,  31  L.  Ed.  275.  Com- 
pare Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397,  24 
Sup.  Ct.  376,  48  L.  Ed.  496,  and  U.  S.  v.  Norton,  91  U.  S.  566,  23  L. 
Ed.  454. 

72  U.  S.  v.  Hopewell,  51  Fed.  798,  2  C.  C.  A.  510;  SAME  v.  JAHN, 
155  U.  S.  109,  15  Sup.  Ct  39,  39  L.  Ed.  87 ;  Anglo-Californian  Bank 
v.  U.  S.,  175  U.  S.  37,  20  Sup.  Ct.  19,  44  L.  Ed.  64. 


448  APPELLATE    JURISDICTION.  (Cll.  20 

Criminal  Lazes. 

In  these  cases,  too,  the  decision  of  the  circuit  court  of  appeals 
is  final.  A  proceeding  by  contempt  is  so  far  criminal  that 
the  Supreme  Court  has  no  jurisdiction  of  it,  and  the  decision 
of  the  circuit  court  of  appeals  is  final.73 

It  has  been  held  by  the  Supreme  Court  that  this  method 
of  review  in  criminal  cases  superseded  the  old  provision  allow- 
ing the  judges  of  the  circuit  court,  where  two  sat  in  the  trial, 
to  certify  up  to  the  Supreme  Court  questions  of  law  wherein 
they  differed  in  opinion ;  this  right  being  limited  under  the 
former  law  to  certifying  simply  questions  of  law.74 

Admiralty  Cases. 

Here,  too,  the  decision  of  the  circuit  court  of  appeals  is  final. 
In  this  respect  an  appeal  from  the  decision  of  the  court  in  the 
ordinary  questions  arising  out  of  limited  liability  proceedings 
is  an  admiralty  case  reviewable  only  by  the  circuit  court  of 
appeals.70  But  when  a  jurisdictional  question  arises,  either 
in  a  limited  liability  case  or  any  other  admiralty  case,  then  the 
appeal  goes  to  the  Supreme  Court,  under  the  fifth  section  of 
the  act.76 

In  reference  to  all  the  classes  of  cases  discussed  in  this  con- 
nection, as  cases  in  which  the  decision  of  the  circuit  court  of 
appeals  is  final,  it  must  be  borne  constantly  in  mind  that  in 
these,  as  in  all  other  decisions  of  the  circuit  court  of  appeals, 
the  Supreme  Court  may  obtain  jurisdiction  either  to  review 
special  questions  arising,  in  case  the  circuit  court  of  appeals 
certifies  such  questions  up  to  it,  or  to  decide  the  whole  case, 
if,  when  such  questions  are  certified  up,  it  thinks  proper  to 
require  the  whole  record  to  be  sent  to  it,  or  if,  independent  of 

73  O'Neal  v.  U.  S.,  190  U.  S.  36,  23  Sup.  Ct.  776,  47  L.  Ed.  945. 

7  4  u.  S.  v.  Rider,  103  U.  S.  132,  16  Sup.  Ct.  983,  41  L.  Ed.  101;  U. 
S.  v.  Hewecker,  164  U.  S.  46,  17  Sup.  Ct.  18,  41  L.  Ed.  345. 

7  5  Oregon  R.  &  Nav.  Co.  v.  Balfour,  179  U.  S.  55,  21  Sup.  Ct.  28, 
45   L.  Ed.  82. 

7e  The  Alliance,  70  Fed.  273,  17  C.  C.  A.  124;  The  Annie  Faxon, 
87  Fed.  961,  31  C.  C  A.  325;  The  Presto,  93  Fed.  522,  35  C.  C.  A.  394. 


§  179)       JURISDICTION  OF  CIRCUIT  COURT  OF  AITEA.LS.  4.4.0 

any  such  certificate  from  the  circuit  court  of  appeals,  it  decides 
on  application  for  a  certiorari  to  bring  the  whole  case  up  by 
that  process. 

SAME-POWER  OF  CIRCUIT  COURT  OF  APPEALS  TO 
ISSUE  AUXILIARY  WRITS. 

179.    The    circuit    court   of   appeals   can   issue    auxiliary    writs 
only  incidentally  to  cases  pending  in  it. 

The  twelfth  section  of  the  act  provides  that  the  circuit 
court  of  appeals  shall  have  the  powers  specified  in  section 
seven  hundred  and  sixteen  of  the  Revised  Statutes  of  the 
United  States ." 

Section  716,  referred  to  in  this  clause,  reads  as  follows : 
"The  Supreme  Court  and  the  circuit  and  district  courts  shall 
have  power  to  issue  writs  of  scire  facias.  They  shall  also 
have  power  to  issue  all  writs  not  specifically  provided  for  by 
statute,  which  may  be  necessary  for  the  exercise  of  their  re- 
spective jurisdictions  and  agreeable  to  the  usages  and  princi- 
ples of  law."  78 

Under  this  provision,  however,  it  has  been  uniformly  held 
that  the  circuit  court  of  appeals  has  no  power  to  issue  any  of 
these  writs  as  independent  proceedings,  but  only  as  incidental 
to  a  case  regularly  brought  before  it  by  appeal  or  writ  of 
error.  For  instance,  in  U.  S.  v.  Severens,79  the  issue  of  a 
mandamus  was  refused  where  no  case  was  pending  in  the 
court ;  and  in  U.  S.  v.  Judges  of  United  States  Court  of  Ap- 
peals 80  it  was  held  that  such  a  writ  could  not  be  used  in  lieu 
of  an  appeal,  but  only  in  aid  of  a  jurisdiction  already  acquired. 
Nor  will  this  court  issue  a  certiorari  as  an  original  process.81 
The  same  conclusion  was  reached  as  to  the  issue  of  a  writ  of 
prohibition.82 

"U.  S.  Comp.  St.  1901,  p.  553.         "U.  S.  Comp.  St.  1901,  p.  580. 
to  71  Fed.  768,  18  C.  C.  A.  314.         to  85  Fed.  177,  29  C.  C.  A.  78. 
si  Travis  Co.  v.  Manufacturing  Co.,  92  Fed.  690,  34  C.  C.  A.  620. 
82  IN  RE  PAQUET,  114  Fed.  437,  52  C.  C.  A.  239. 
Hughes  Fed.Juk. — 29 


45Q  APPELLATE   JURISDICTION,  (Ch.  21 


CHAPTER  XXI. 

APPELLATE  JURISDICTION   (Continued)— THE   SUPREME 

COURT. 

180.  The  Supreme  Court  of  the  United  States — Its  Organization. 

181.  The  Appellate  Jurisdiction  of  the  Supreme  Court — The  Courts 

whose  Decisions  are  Reviewable  by  the  Supreme  Court 

182.  Appeals  from  the  United  States  District  and  Circuit  Courts. 

183.  Appeals  from  the  Circuit  Courts  of  Appeals. 

184.  Appeals  from  Territorial  Courts. 

185.  Appeals  from  the  Court  of  Appeals  of  the  District  of  Columbia. 

186.  Appeals  from  the  Court  of  Claims. 

187.  Appeals  from  the  Court  of  Private  Land  Claims. 

188.  Review  of  State  Court  Decisions. 

189.  Same — Constitutionality. 

190.  Same — The  Proceedings  Reviewable. 

191.  Same — The  Courts  whose  Decisions  are  Reviewable. 

192.  Same — By  Whom  the  Right  of  Review  may  be  Invoked. 

193.  Same — Character  of  Questions  Reviewable. 

194.  Same — How  a  Federal  Question  must  be  Raised  or  Shown  by 

the  Record. 

THE   SUPREME  COURT  OF  THE  UNITED   STATES— ITS 
ORGANIZATION. 

180.  The  Supreme  Court  of  the  United  States  is  the  court  ex- 
ercising the  highest  powers  of  appellate  jurisdiction; 
this  jurisdiction  comprising  certain  appeals  from  all  of 
the  other  federal  courts  and  from  the  state  courts  of 
last  resort,  according  te  regulations  fixed  by  law. 

The  Supreme  Court  consists  of  a  chief  justice  of  the  United 
States  and  eight  associate  justices,  any  six  of  whom 
constitute  a  quorum. 

The  judges  of  the  Supreme  Court  are  appointed  by  the  Presi- 
dent of  the  United  States,  and  hold  oSlcs  during  their 
lifetime.  Under  the  chief  justice,  the  associate  justices 
take  precedence  according  to  the  dates  of  their  commis- 
sions, or,  if  their  commissions  are  dated  alike,  accord- 
ing to  their  ages. 


§  ISO)  SUPREME    COURT — ORGANIZATION.  451 

In  another  connection  the  original  jurisdiction  of  the  Su- 
preme court  has  been  discussed.  It  is  now  necessary  to  con- 
sider this  great  court  in  connection  with  its  appellate  jurisdic- 
tion, which  is  far  the  most  extensive  body  of  law  which  it  ad- 
ministers. 

Composition  of  the  Supreme  Court. 

Section  673  of  the  Revised  Statutes1  provides:  "The  Su- 
preme Court  of  the  United  States  shall  consist  of  a  chief  jus- 
tice of  the  United  States  and  eight  associate  justices,  any  six 
of  whom  shall  constitute  a  quorum." 

Under  its  original  organization,  the  court  was  composed 
of  only  seven  justices,  but  this  number  was  afterwards  in- 
creased to  nine,  the  present  number.  Under  section  674,  the 
associate  justices  take  precedence  according  to  the  dates  of 
their  commissions ;  if  their  commissions  are  dated  alike,  ac- 
cording to  their  ages. 

Sessions  of  the  Supreme  Court. 

It  is  provided  by  section  684  of  the  Revised  Statutes  2  that 
the  court  shall  hold  one  term  annually  at  the  seat  of  govern- 
ment, commencing  on  the  second  Monday  in  October,  and  such 
adjourned  or  special  terms  as  it  may  find  necessary  for  the 
dispatch  of  business.  In  actual  practice,  on  account  of  the  pres- 
sure of  business  upon  it,  the  court  is  in  practically  continuous 
session  from  October  until  the  early  part  of  the  following 
May;  only  adjourning  occasionally,  and  using  even  those  ad- 
journments for  the  purpose  of  writing  up  opinions  in  cases 
argued  and  submitted. 

Appellate  Jurisdiction  of  the  Supreme  Court — Sources  and 
Regulation  of. 

The  second  paragraph  of  the  second  section  of  article  3  of 
the  Constitution  provides: 

"In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  state  shall  be  party,  the 
Supreme  Court  shall  have  original   jurisdiction.     In  all  the 

i  U.  S.  Comp.  St.  1901,  p.  558.  «  U.  S.  Comp.  St  1901,  p.  563. 


452  APPELLATE   JURISDICTION.  (Ch.  21 

other  cases  before  mentioned,  the  Supreme  Court  shall  have 
appellate  jurisdiction  both  as  to  law  and  fact,  with  such  excep- 
tions and  under  such  regulations  as  the  Congress  shall  make." 
From  this  it  appears  that  the  original  jurisdiction  of  the  Su- 
preme Court  springs  directly  from  the  Constitution,  but  its 
appellate  jurisdiction  is  subject  to  regulation  by  Congress.8 

THE    APPELLATE    JURISDICTION    OF    THE    SUPREME 

COURT—THE  COURTS   "WHOSE  DECISIONS   ARE 

REVIEWABLE  BY  THE  SUPREME  COURT. 

181.    The   Courts   whose   decisions   are   reviewable   by   the   Su- 
preme  Court   of   the   United   States  under  regulations 
fixed  by  law  are: 
(a)    The  United  States  district  and  circuit  courts. 

;    (b)    The  United  States  circuit  courts  of  appeals. 

(c)  The  territorial  courts. 

(d)  The  courts  of  the  District  of  Columbia. 

(e)  The  court  of  claims. 

(f)  The  court  of  private  land  claims. 

(g)  State  courts  of  last  resort. 


v 
1 


APPEALS  FROM  THE  UNITED  STATES  DISTRICT  AND 
CIRCUIT  COURTS. 


182.  The  Supreme  Court  exercises  appellate  jurisdiction  di- 
rectly over  the  district  and  circuit  courts  of  the  United 
States  in  the  following  cases: 

(a)  When  jurisdictional  questions  are  involved. 

(b)  Prize  causes.        ■ 

(c)  Capital  criminal  causes.    

(d)  Constitutional  or  treaty  questions,   comprehending: 

(1)  The  construction  or  application  of  the  federal  Con- 

stitution; 

(2)  The  Constitutionality  of  a  federal  law; 

(3)  The  validity  or  construction  of  a  treaty;   — 

(4)  The  constitutionality  of  a  state  law.       

(e)  Prosecutions  for  obstructions  to  navigation  by  bridges.  ___ 

(f)  Suits  by  the  United  States  under  anti-trust  legislation. 

3  National  Exch.  Bank  v.  Peters,  144  U.  S.  570.  12  Sup.  Ct.  767. 
3G  L.  Ed.  545. 


§  182)      APPEALS   FROM   DISTRICT   AXD    CIRCUIT   COURTS.        453 

The  main  mass  of  litigation  in  these  courts  is  reviewable,  as 
has  already  been  seen,  by  the  circuit  court  of  appeals,  and  the 
jurisdiction  of  the  Supreme  Court  is  the  exception,  and  not  the 
rule ;  but  under  section  5  of  the  appellate  court  act  quoted  in 
the  previous  chapter,  the  Supreme  Court  has  jurisdiction  over 
the  decisions  of  the  district  and  circuit  courts  in  exceptional 
cases  of  general  importance.  This  jurisdiction  is  so  impor- 
tant that  this  fifth  section  of  the  act  may  well  bear  repetition. 
It  is  as  follows :  "That  appeals  or  writs  of  error  may  be  taken\ 
from  the  district  courts  or  from  the  existing  circuit  courts  1 
direct  to  the  Supreme  Court  in  the  following  cases:  In  any 
case  in  which  the  jurisdiction  of  the  court  is  in  issue ;  in  such 
cases,  the  question  of  jurisdiction  alone  shall  be  certified  to 
the  Supreme  Court  from  the  court  below  for  decision.  From 
the  final  sentences  and  decrees  in  prize  causes.  From  cases 
of  conviction  of  a  capital  crime.  In  any  case  that  involves 
the  construction  or  application  of  the  Constitution  of  the  United 
States.  In  any  case  in  which  the  constitutionality  of  any  law 
of  the  United  States  or  the  validity  or  construction  of  any 
treaty  made  under  its  authority  is  drawn  in  question.  In  any 
case  in  which  the  Constitution  or  law  of  a  state  is  claimed  to 
be  in  contravention  of  the  Constitution  of  the  United  States. 
Nothing  in  this  act  shall  affect  the  jurisdiction  of  the  Supreme 
Court  in  cases  appealed  from  the  highest  court  of  a  state,  nor 
the  construction  of  the  statute  providing  for  review  of  such 
cases."  -" 

(a)  Jurisdictional  Questions. 

The  first  paragraph  of  the  above-recited  act  requires  the  ap- 
peal to  go  straight  to  the  Supreme  Court  where  the  jurisdic- 
tion of  the  lower  court  is  in  issue,  but  in  such  case  the  court 
can  only  consider  the  question  of  jurisdiction,  and  not  the  case 
on  the  merits.  In  this  respect  this  first  class  of  cases  differs 
from  all  the  subsequent  ones.  In  order  to  give  the  Supreme 
Court  jurisdiction  over  such  a  question,  there  must  be  a  cer- 
tificate of  the  court  accompanying  the  appeal  or  writ  of  error, 
and  without  such  certificate  the  court  has  no  power  to  review 


454  APPELLATE   JURISDICTION.  (Ch.  21 

even  a  question  of  jurisdiction.4  This  certificate  must  be  made 
by  the  lower  court  during  the  term  at  which  final  judgment  is 
rendered,  and  cannot  be  made  at  a  subsequent  term.6  There 
is  no  specific  form  which  this  certificate  must  follow.  It  should 
be,  in  the  main,  similar  to  the  old  form  adopted  by  the  courts 
when  certifying  to  the  Supreme  Court  particular  questions  or 
propositions  of  law  wherein  they  differed  in  opinion.6  In  no 
event  can  the  Supreme  Court  be  required,  even  where  the  case 
turned  on  a  jurisdictional  question,  to  search  through  the  rec- 
ord and  exhume  it  from  a  great  mass  of  pleadings  or  rulings.7 
At  the  same  time,  there  is  no  magic  in  the  mere  use  of  the 
word  "certified,"  but  anything  which  may  present  to  the  appel- 
late court  the  single,  well-defined  question  of  jurisdiction,  sev- 
ered from  all  collateral  questions,  will  be  sufficient.  For  in- 
stance, in  one  case  the  parties  who  had  obtained  a  receiver  in 
a  state  court  applied  to  a  federal  court  to  discharge  a  receiver 
which  the  latter  court  had  appointed;  claiming  that  the  state 
court  had  first  obtained  jurisdiction  over  the  subject-matter, 
and  that  its  receiver  was  in  prior  possession.  The  federal 
court  refused  to  discharge  its  receiver,  and  from  this  order 
an  appeal  was  taken.  The  petition  for  an  appeal  set  out  the 
action  of  the  lower  court,  and  prayed  for  an  appeal  from  the 
order  taking  and  exercising  jurisdiction;  and  the  federal 
judge,  in  allowing  the  appeal,  expressly  stated  in  the  order  that 
it  was  granted  solely  upon  the  question  of  jurisdiction.  The 
Supreme  Court  held  this  sufficient,  using  the  following  lan- 
guage: "It  is  not  necessary  that  the  word  'certify'  be  form- 
ally used.      It  is  sufficient  if  there  is  a  plain   declaration 

*  ROBINSON  v.  CALDWELL,  165  U.  S.  359,  17  Sup.  Ct.  343,  41 
L.  Ed.  745. 

6  COLVIN  v.  JACKSONVILLE,  158  U.  S.  456,  15  Sup.  Ct.  866,  39 
L.  Ed.  1053.  This  case  contains  a  good  form  of  certificate  of  a 
jurisdictional  question. 

e  Maynard  v.  Hecht,  151  U.  S.  324,  14  Sup.  Ct.  353.  38  L.  Ed.  179. 

7  Van  Wagenen  v.  Sewall,  160  U.  S.  369,  16  Sup.  Ct.  370,  40  L. 
Ed.  460. 


§  182)       APPEALS  FROM  DISTRICT  AND  CIRCUIT  COURTS.  455 

that  the  single  matter  which  is  by  the  record  sent  up  to  this 
court  for  decision  is  a  question  of  jurisdiction,  and  the  precise 
question  clearly,  fully,  and  separately  stated.  No  mere  sug- 
gestion that  the  jurisdiction  of  the  court  was  in  issue  will 
answer.  This  court  will  not  of  itself  search,  nor  follow  coun- 
sel in  their  search  of,  the  record,  to  ascertain  whether  the  judg- 
ment of  the  trial  court  did  or  did  not  turn  on  some  question 
of  jurisdiction.  But  the  record  must  affirmatively  show  that 
the  trial  court  sends  up  for  consideration  a  single,  definite 
question  of  jurisdiction.  And  that  is  here  shown.  The  peti- 
tion for  an  appeal  is  upon  the  single  ground  that  the  court 
wrongfully  took  possession  of  the  property,  because  it  was 
then  in  the  possession  of  the  state  court,  and  in  the  order  allow- 
ing the  appeal  it  is  explicitly  stated  that  this  appeal  is  granted 
solely  upon  the  question  of  jurisdiction,  and  the  court  at  the 
same  time  reserved  to  itself  the  right,  which  it  subsequently 
exercised,  of  determining  what  portions  of  the  proceedings 
should  be  incorporated  into  the  record  sent  here  for  the  pur- 
pose of  presenting  this  question."  8 

In  another  case  the  court  says :  "The  record  discloses  that 
the  defendants  below  appealed  upon  the  express  ground  that 
the  court  erred  in  taking  jurisdiction  of  the  bill,  and  in  not 
dismissing  the  bill  for  want  of  jurisdiction,  and  prayed  that 
their  appeal  should  be  allowed,  and  the  question  of  jurisdic- 
tion be  certified  to  the  Supreme  Court,  and  that  such  appeal 
was  allowed.  The  certificate  further  states  that  there  is  sent 
a  true  copy  of  so  much  of  the  record  as  is  necessary  for  the 
determination  of  the  question  of  jurisdiction,  and  as  part  of 
the  record  so  certified  is  the  opinion  of  the  court  below,  in 
accordance  with  which  defendants'  motion  to  dismiss  the  case 
for  want  of  jurisdiction  was  denied.  It  therefore  appears  that 
the  appeal  was  granted  solely  upon  the  question  of  jurisdic- 
tion." • 

s  Shields  v.  Coleman,  157  TJ.  S.  168,  15  Sup.  Ct.  570,  39  L.  Ed.  660. 
»  SMITH  v.  McKAY,  161  U.  S.  355,  16  Sup.  Ct.  490,  40  L.  Ed.  731. 


45G  APPELLATE   JURISDICTION.  (Ch.  21 

In  another  case  10  the  record  showed  that  there  was  a  plea 
to  the  jurisdiction  in  the  lower  court  on  the  ground  that  the 
suit  was  a  collusive  attempt  to  confer  upon  the  federal  court 
a  jurisdiction  not  conferred  upon  it  by  law.  The  judgment 
of  the  court  recited  these  pleas,  the  replications  thereto,  an 
agreed  statement  of  facts,  the  recital  that  the  court  decided 
against  the  jurisdiction,  the  opinion  of  the  court,  and  also  a 
bill  of  exceptions  reciting  the  ruling  of  the  court  on  the  juris- 
dictional point,  and  the  exception  thereto.  The  order  allow- 
ing the  writ  of  error  also  recited  the  ruling  of  the  court  on 
the  question  of  jurisdiction,  and  allowed  the  appeal.  It  was 
held  that  this  was  a  sufficient  certificate  of  the  question  of 
jurisdiction. 

In  another  case11  the  record  showed  that  the  only  matter 
which  had  been  tried  in  the  lower  court  was  a  demurrer  to  a 
plea  to  the  jurisdiction ;  that  the  decision  of  the  court  on  that 
issue  was  against  the  jurisdiction,  and  dismissed  the  case;  and 
the  petition  for  the  allowance  of  an  appeal  simply  prayed  for 
a  review  of  the  judgment  holding  that  the  court  had  no  juris- 
diction of  the  case,  on  which  petition  the  writ  of  error  was 
allowed.  This  also  was  held  a  sufficient  certificate  under  the 
statute. 

In  another  case  12  the  court  had  dismissed  the  action  as  not 

10  In  re  Lehigh  Min.  &  Mfg.  Co..  156  U.  S.  322,  15  Sup.  Ct  375  39 
L.  Ed.  438. 

ii  Interior  Const.  &  Imp.  Co.  v.  Gibney,  160  U.  S.  217,  16  Sup.  Ct 
272,  40  L.  Ed.  401. 

i2  Huntington  v.  Laidley,  176  U.  S.  668,  20  Sup.  Ct.  526,  44  L.  Ed. 
630.  The  following  was  the  certificate  in  this  case:  "A  final  de- 
cree having  been  entered  herein,  on  the  25th  day  of  June,  1S08, 
dismissing  this  bill  and  the  bill  and  amended  bills  therein:  Now! 
therefore,  this  court,  in  pursuance  of  the  second  paragraph  of  the 
fifth  section  of  the  act  of  Congress  approved  March  3.  1S91,  and  en- 
titled 'An  act  to  establish  circuit  courts  of  appeals  and  to  define  and 
regulate  in  certain  cases  the  jurisdiction  of  the  courts  of  the  United 
States,  and  for  other  purposes,'  hereby  certifies  to  the  Supreme 
Court  of  the  United  States  for  decision  the  question  of  jurisdiction 
alone  of  this  court  over  this  cause  as  follows:     Is  this  court  without 


§  182)       APPEALS  FROM  DISTRICT  AND  CIRCUIT  COURTS.  457 

involving  a  controversy  within  the  cognizance  of  the  federal 
courts,  and  this  appeared  clearly  on  the  face  of  the  record. 
The  petition  for  appeal  alleged  that  the  plaintiff  was  aggrieved 
by  the  decree  dismissing  the  suit  on  the  ground  of  want  of 
jurisdiction,  because  of  the  pendency  of  a  suit  in  the  state 
court  begun  prior  to  the  commencement  of  this  cause,  and  the 
order  provided  that  the  appeal  be  allowed  "as  prayed  for." 
The  Supreme  Court  held  that  the  allowance  of  appeal  in  this 
form  was  sufficient,  under  these  circumstances,  independent 
of  the  fact  that  the  certificate  itself  was  also  sufficient. 

In  another  case  1S  the  decree  and  the  allowance  of  the  ap- 
peal both  showed  that  the  only  question  in  issue  was  jurisdic- 
tion. The  court  held  that  no  separate  certificate  was  neces- 
sary. 

On  the  other  hand,  if  the  jurisdictional  question  appears 
in  the  record,  not  as  the  sole  question  passed  upon,  but  only  as 
one  of  many,  and  the  order  allowing  the  writ  of  error  was  in 
general  terms,  not  specifying  this  single  question  of  jurisdic- 
tion, that  would  not  be  a  sufficient  certificate,  and  the  court 
would  not  take  cognizance  of  the  case  under  such  circum- 
stances.14 

So,  too,  where  the  record  of  the  case  showed  that  it  had 
turned,  not  upon  a  jurisdictional  question,  but  upon  the  merits, 
even  a  certificate  not  presenting  a  clear-cut,  single  jurisdictional 

jurisdiction  of  this  cause  because  of  the  pendency  in  the  state  court, 
prior  to  the  commencement  of  this  suit,  of  the  action  of  ejectment 
in  which  John  B.  Laidley  was  plaintiff  and  the  Central  Land  Co. 
of  West  Va.  was  defendant,  which  was  begun  in  the  circuit  court 
of  Cabell  Co.,  West  Va.,  on  the  first  Monday  in  April,  1882,  and  of 
the  other  actions  in  ejectment  brought  prior  to  this  cause  in  said 
state  court  by  the  said  John  B.  Laidley  as  plaintiff  in  relation  to  the 
property  in  question  in  this  suit,  and  of  the  chancery  cause  in  which 
the  Central  Land  Co.  of  West  Va.  was  complainant  and  John  B. 
Laidley  and  others  were  defendants,  which  was  brought  in  said 
state  court  prior  to  the  commencement  of  this  cause?" 

is  Excelsior  Wooden  Pipe  Co.  v.  Bridge  Co.,  185  TJ.  S.  282,  22  Sup. 
Ct.  681,  46  L.  Ed.  910. 

14  CHAPPELL  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct.  397,  40  L.  Ed.  510. 


458  APPELLATE   JURISDICTION.  (Ch.  21 

question  would  not  give  the  court  power  to  review.  The  case 
in  which  this  principle  was  announced  was  a  habeas  corpus 
case  in  a  district  court  in  which  the  writ  was  issued  to  a  county 
sheriff,  and  was  prayed  on  the  ground  that  the  party  confined 
under  an  indictment  of  a  state  court  was  acting  at  the  time 
as  a  special  agent  of  the  general  land  office  in  the  Department 
of  the  Interior  of  the  United  States.  The  court  certified  the 
following  questions  to  the  Supreme  Court  as  questions  of  juris- 
diction : 

(1)  Whether  this  court  has  jurisdiction  in  the  premises  to 
discharge  the  petitioner,  Charles  A.  M.  Schlierholz,  from  the 
custody  of  John  A.  Hinkle,  sheriff  of  Independence  county, 
Ark.,  for  the  matters  and  things  and  under  the  circumstances 
set  out  in  the  record  in  this  cause. 

(2)  Whether  the  proper  order  of  this  court,  under  the  facts, 
should  have  been  to  remand  said  petitioner  to  the  custody  of 
the  said  sheriff  of  Independence  county,  Ark.,  to  be  dealt 
with  by  the  Independence  circuit  court  of  the  state,  or  to  dis- 
charge him  from  said  custody. 

The  Supreme  Court  held  that  this  certificate  was  not  suffi- 
ciently definite  to  be  considered  a  certificate  of  a  jurisdictional 
question — especially  in  connection  with  the  fact  that  the  record 
in  the  case  did  not  show  that  any  such  question  had  arisen.15 
The  petition  for  the  appeal  cannot  take  the  place  of  such  a 
certificate  when  it  merely  stated  in  general  terms  that  the 
court  acted  without  jurisdiction,  but  did  not  specify  the  spe- 
cial jurisdictional  question  arising,  and  the  judge  allowed  the 
appeal  generally  in  the  form  used  when  entire  records  are 
taken  up.  In  such  case,  even  a  more  definite  statement  of  a 
jurisdictional  question  in  the  assignment  of  errors  will  not 
help.16 

The  questions  which  are  considered  jurisdictional  in  this 
connection  have  been  discussed  to  some  extent  in  the  previous 

is  Arkansas  v.  Schlierholz,  179  U.  S.  598,  21  Sup.  Ct.  229,  45  L. 
Ed.  335. 

i6  The  Bayonne,  159  U.  S.  687,  16  Sup.  Ct.  185,  40  L.  Ed.  305. 


§  182)       APPEALS  FROM   DISTRICT  AND  CIRCUIT   COURTS.  459 


' 


chapter.  The  jurisdiction  meant  is  the  jurisdiction  in  the  case 
from  which  the  appeal  is  taken,  not  the  jurisdiction  in  a  for 
mer  case  questioned  by  the  latter  case.  For  instance,  where 
a  suit  is  brought,  questioning  the  validity  of  a  foreclosure  pro- 
ceeding in  a  former  suit,  the  jurisdiction  of  the  court  in  this 
former  suit  cannot  be  considered.17  And  the  question  whether 
a  suit  against  a  state  officer  is  in  effect  a  suit  against  a  state, 
is  not  a  jurisdictional,  but  a  constitutional,  question,  and  can- 
not be  considered  under  this  clause  of  the  statute.18  On  the 
other  hand,  the  question  whether  the  court  ever  obtained  juris- 
diction over  the  defendant  by  a  valid  service  of  process  is  a 
question  of  the  jurisdiction  which  can  be  certified  up.19  Un- 
der some  circumstances,  the  Supreme  Court  can  consider  on 
appeals  based  on  jurisdictional  questions,  not  only  matters  of 
law,  but  matters  of  fact;  as,  for  instance,  in  an  action  of  eject- 
ment, where  the  court  had  held  on  affidavits  that  the  value  of 
the  land  involved  was  less  than  two  thousand  dollars,  the  Su- 
preme Court  reviewed  this  finding  on  the  facts,  and  reversed 
it.20 

(b)  Prise  Causes. 

The  fifth  section  requires  appeals  to  go  direct  to  the  Supreme 
Court  "from  the  final  sentences  and  decrees  in  prize  causes." 
The  reason  of  this  is  the  international  character  of  the  ques- 
tion involved.  Hence,  where  the  question  of  international  law 
was  whether  an  unarmed  fishing  vessel  not  going  knowingly 
to  a  blockaded  port  was  a  lawful  prize,  the  question  was  taken 
to  the  Supreme  Court.21 

it  Carey  v.  Railway  Co.,  150  U.  S.  170,  14  Sup.  Ct.  63,  37  L.  Ed. 
1041. 

is  Illinois  Cent.  R.  Co.  v.  Adams,  ISO  U.  S.  28,  21  Sup.  Ct.  251, 
45  L.  Ed.  410. 

is  SHEPARD  v.  ADAMS,  168  U.  S.  618,  18  Sup.  Ct  214,  42  L. 
Ed.  602. 

20  Wetmore  v.  Rymer,  169  U.  S.  115,  18  Sup.  Ct.  293,  42  L.  Ed.  682. 

2i  Tue  Paquete  Habana,  175  U.  S.  677,  20  Sup.  Ct  290,  44  L.  Ed. 
320. 


4G0 


APPELLATE   JURISDICTION.  (Ch.  21 


(c)  Capital  Crimes. 

The  fifth  section  also  requires  a  direct  resort  to  the  Supreme 
Court  "in  cases  of  conviction  of  a  capital  crime."  In  crimes 
of  this  character,  all  necessary  orders,  bail,  and  writs  to  mature 
the  appellate  process  may  be  acted  upon  by  any  Supreme  Court 
justice,  not  simply  by  the  justice  assigned  to  the  special  circuit 
where  the  case  arose.22 

It  has  been  seen  in  connection  with  the  jurisdiction  of  the 
circuit  court  of  appeals  that  the  question  turns  upon  the  fact 
that  there  is  a  conviction  of  a  capital  crime,  although  in  fact 
capital  punishment  cannot  be  imposed  by  reason  of  a  recom- 
mendation of  the  jury  to  mercy.23 

(d)  Constitutional  or  Treaty  Questions. 

The  fifth  section  requires  a  direct  resort  to  the  Supreme 
Court  "in  any  case  that  involves  the  construction  or  applica- 
tion of  the  Constitution  of  the  United  States." 

"In  any  case  in  which  the  constitutionality  of  any  law  of  the 
United  States  or  the  validity  or  construction  of  any  treaty 
made  under  its  authority  is  drawn  in  question. 

"In  any  case  in  which  the  Constitution  or  law  of  the  state 
is  claimed  to  be  in  contravention  of  the  Constitution  of  the 
United  States." 

Here  there  is  a  striking  difference  in  the  policy  of  the 
act  between  this  class  of  cases  and  the  class  involving 
simply  jurisdictional  questions.  In  the  latter,  only  the 
jurisdictional  question  is  certified,  but  in  these  constitutional 
or  international  questions  the  whole  case  goes  up,  and  not 
simply  the  constitutional  or  international  question  that  may 
be  involved.  If  such  a  question  was  raised  on  allegations 
so  false  and  fictitious  as  to  practically  amount  to  bad  faith,  or 
on  propositions  so  bald  as  to  be  self-destructive,  the  court 
would  probably  not  take  jurisdiction  ;  but,  if  the  question  raised 
is  bona  fide  and  colorable,  the  court  will  consider  the  whole 

22  Hudson  v.  Parker,  156  U.  S.  277,  15  Sup.  Ct.  450,  39  L.  Ed.  424. 

23  Goodshot  v.  TJ.  S.,  104  Fed.  257,  43  C.  C.  A.  525;  Id.,  179  U. 
S.  87,  21  Sup.  Ct.  33,  45  L.  Ed.  101. 


§  182)       APPEALS  FROM  DISTRICT  AND  CIRCUIT  COURTS  461 

case,  although  it  should,  in  making  such  decision,  hold  that 
the  constitutional  question  on  account  of  which  the  case  was 
taken  up  was  not  sustainable.  On  this  point  the  Supreme 
Court  has  expressed  itself  as  follows : 

"The  argument  by  which  it  is  sought  to  support  the  con- 
tention that  a  right  to  review  the  case  by  direct  appeal  does 
not  exist  not  only  disregards  the  letter  of  the  statute,  but  is 
unsound  in  reason.  It  says  that  the  right  to  the  direct  appeal 
can  alone  rest  on  the  proposition  'that  the  Constitution  or  a 
law  of  the  state  of  Texas  conflicts  with  appellant's  contract, 
and  contravenes  the  federal  Constitution — in  other  words,  it 
must  affirmatively  appear  upon  the  face  of  complainant's  bill 
that  there  was  involved  in  this  case  a  federal  question,  the 
determination  of  which  was  essential  to  a  correct  decision  of 
the  case' ;  but  the  words  of  the  statute  which  empower  this 
court  to  review  directly  the  action  of  the  circuit  court  are  that 
such  power  shall  exist  wherever  it  is  claimed  on  the  record 
that  a  law  of  a  state  is  in  contravention  of  the  federal  consti- 
tution. Of  course,  the  claim  must  be  real  and  colorable,  not 
fictitious  and  fraudulent.  The  contention  here  made,  how- 
ever, is  not  that  the  bill,  without  color  of  right,  alleges  that 
the  state  law  and  city  ordinances  violate  the  Constitution  of 
the  United  States,  but  that  such  claim  as  alleged  in  the  bill 
is  legally  unsound.  The  argument,  then,  in  effect,  is  that  the 
right  to  a  direct  appeal  to  this  court  does  not  exist  where  it  is 
claimed  that  a  state  law  violates  the  Constitution  of  the  United 
States,  unless  the  claim  be  well  founded.  But  it  cannot  be 
decided  whether  the  claim  is  meritorious  and  should  be  main- 
tained without  taking  jurisdiction  of  the  case.  The  authori- 
ties referred  to  as  supporting  the  position  indicate  that  the 
argument  is  a  result  of  a  confusion  of  thought,  and  that  it 
arises  from  confounding  the  power  of  this  court  to  review  on 
a  writ  of  error  the  action  of  a  state  court  with  the  power  exer- 
cised by  this  court  under  the  act  of  1891  to  review  by  direct 
appeal  the  final  action  of  the  Circuit  Court,  where  on  the 
face  of  the  record  it  appears  that  the  claim  was  made  that  the 


4G2  APPELLATE   JURISDICTION.  (Ch.  21 

statute  of  a  state  contravened  the  Constitution  of  the  United 
States.  These  classes  of  jurisdiction  are  distinct  in  their  na- 
ture, and  are  embraced  in  different  statutory  provisions.  Hav- 
ing jurisdiction  of  the  cause,  there  exists  the  power  to  con- 
sider every  question  arising  on  the  record."  24 

In  order  to  give  jurisdiction  in  this  class  of  questions,  it 
must  clearly  appear  that  the  question  was  actually  raised  and 
passed  on.  It  is  not  only  necessary  that  a  title,  right,  priv- 
ilege, or  immunity  is  claimed  under  the  Constitution,  where 
the  appeal  is  based  on  the  ground  that  the  construction  or 
application  of  the  Constitution  is  involved,  but  a  definite  issue 
in  respect  to  the  possession  of  the  right  must  be  distinctly 
deducible  from  the  record.  Hence,  although  the  plaintiff 
stated  in  his  complaint  that  he  would  rely  upon  certain  treaty 
provisions  and  upon  the  fifth  amendment  to  the  federal  Consti- 
tution, but  there  was  nothing  to  show  that  the  question  actually 
arose  in  the  case,  the  court  declined  to  take  jurisdiction.26 

A  general  exception  to  an  instruction,  not  stating  that  it 
was  objected  to  on  the  ground  that  a  constitutional  question 
was  involved,  is  not  sufficient  to  make  the  record  show  such 
a  question ;  and,  as  it  must  appear  from  the  record  of  the 
court  of  original  jurisdiction,  it  is  equally  clear  that  an  assign- 
ment of  errors  cannot  be  used  for  the  purpose  of  grafting  upon 
the  record  such  a  question  for  the  first  time.26  On  the  other 
hand,  the  Supreme  Court  would  have  jurisdiction,  although 
the  question  was  raised  for  the  first  time  by  the  defendant's 
pleading,  as  by  demurrer ;  the  principle  being  different  in  this 
case  from  the  rule  that  the  original  jurisdiction  of  a  federal 
court,  as  based  on  a  federal  question,  must  appear  from  the 

J4  PENN  MUT.  LIFE  INS.  CO.  v.  AUSTIN,  168  U.  S.  G85,  694,  695, 
18  Sup.  Ct.  223,  42  L.  Ed.  626.  See,  also,  Horner  v.  U.  S.,  143  TJ.  S. 
570,  12  Sup.  Ct.  522,  36  L.  Ed.  266 ;  CHAPPELL  v.  U.  S.,  160  U.  S.  499, 
16  Sup.  Ct.  397,  40  L.  Ed.  510;  Field  v.  Paving  Co.,  194  U.  S.  618, 
24  Sup.  Ct.  784,  48  L.  Ed.  1142. 

as  Muse  v.  Hotel  Co.,  16S  U.  S.  430,  18  Sup.  Ct.  109,  42  L.  Ed.  531. 

ze  Cincinnati,  H.  &  D.  R.  Co.  v.  Thiebaud,  177  U.  S.  615,  20  Sup. 
Ct.  822,  44  L.  Ed.  911. 


§  182)       APPEALS  FROM   DISTRICT  AND  CIRCUIT  COURTS.  463 

plaintiff's  statement  of  his  own  case,  as  has  been  discussed  in 
a  previous  connection.27  It  makes  no  difference  which  of  the 
two  parties  appeals.  The  court  has  jurisdiction  in  either  case, 
if  such  a  question  is  involved.  For  instance,  in  Loeb  v.  Colum- 
bia Tp.28  the  federal  question  was  raised  by  the  defendant's 
demurrer  and  decided  in  his  favor,  and  the  plaintiff  was  the 
appellant.  On  the  other  hand,  in  Connolly  v.  Union  Sewer 
Pipe  Co.29  the  constitutional  question  was  raised  by  the  plain- 
tiff, sustained  by  the  court,  and  appealed  by  defendant.  In 
both  cases  the  court  held  that  it  had  jurisdiction/" 


30 


Cases  Included  in  This  Class. 

(1)  "In  Any  Case  That  Involves  the  Construction  or  Applica- 
tion of  the  Constitution  of  the  United  States." 

In  order  to  give  jurisdiction  under  this  heading,  the  consti- 
tutional question  must  be  directly  involved,  and  must  be  a  con- 
trolling question  in  the  case.31 

Notwithstanding  the  broad  language  of  this  statute,  it  was 
not  intended  to  change  the  long-established  principle  of  crim- 
inal law  that  no  appeal  lies  on  behalf  of  the  government.  Hence 
in  criminal  cases  the  United  States  cannot  appeal,  even  though 
a  constitutional  question  is  involved.32  But  despite  the  act  of 
January  20,  1897,38  the  defendant  can  take  any  criminal  case, 
capital  or  not,  to  the  Supreme  Court,  that  involves  a  constitu- 
tional question.84 

*i  Loeb  v.  Township,  179  U.  S.  472,  21  Sup.  Ct.  174,  45  L.  Ed.  280; 
Lampasas  v.  Bell,  ISO  U.  S.  276,  21  Sup.  Ct.  3GS,  45  L.  Ed.  527;  ante 
c.  10. 

28  179  U.  S.  472,  21  Sup.  Ct.  174,  45  L.  Ed.  280. 

2»  184  TJ.  S.  540,  22  Sup.  Ct.  431,  46  L.  Ed.  679. 

so  See,  also,  Cosmopolitan  Min.  Co.  v.  Walsh,  193  U.  S.  460,  24 
Sup.  Ct.  489,  48  L.  Ed.  749. 

3i  Carey  v.  Railway  Co.,  150  U.  S.  170,  14  Sup.  Ct  63,  37  L.  Ed. 
1041. 

32  U.  S.  v.  Sanges,  144  U.  S.  310,  12  Sup.  Ct.  609,  36  L.  Ed.  445. 

3  3  29  Stat.  492,  c.  G8  [U.  S.  Comp.  St.  1901,  p.  556]. 

34  MOTES  v.  U.  S.,  178  U.  S.  458,  20  Sup.  Ct.  993,  44  L.  Ed.  1150. 


464  APPELLATE    JURISDICTION.  (Ch.  21 

Mere  irregularities  in  judicial  proceedings  which  can  be  cor- 
rected by  review  are  not  considered  as  constitutional  questions. 
For  instance,  the  allegation  that  a  decree  of  court  deprived  the 
plaintiff  of  his  property  without  due  process  of  law  is  not 
such  a  question.35  So  the  allegation  that  the  action  of  the 
court  in  directing  a  verdict  deprived  the  litigant  of  the  right 
of  trial  by  jury  is  not  a  constitutional  question.88 

So  the  question  whether  process  was  served  on  a  state  agent 
of  a  foreign  corporation  in  accordance  with  the  state  statute 
regulating  it  was  not  a  constitutional  question.37  So,  too,  the 
question  whether  parties  were  collusively  joined  for  the  pur- 
pose of  conferring  jurisdiction  on  a  federal  court.38  On  the 
other  hand,  a  constitutional  question  was  held  to  -be  involved 
when  a  collector  of  internal  revenue  refused  to  file  in  a  state 
court  copies  of  papers  in  his  office  which  he  was  forbidden 
by  federal  regulations  to  divulge,  in  consequence  of  which  he 
was  committed  for  contempt  by  the  state  court,  and  a  pro- 
ceeding by  habeas  corpus  was  based  thereon.39  So,  too,  a  con- 
stitutional question  was  involved  when  the  trial  court  admitted, 
against  the  prisoner's  objection,  the  written  testimony  that  a 
witness  had  given  at  the  examining  trial ;  the  allegation  being 
that  this  deprived  the  accused  of  the  constitutional  right  of 
being  confronted  with  the  witnesses  against  him.40 

The  right  to  vote  for  members  of  Congress  being  a  right 
claimed  under  the  federal  Constitution,  a  suit  against  the  state 
election  officers  for  refusing  a  vote  involves  a  constitutional 
question.41 

The  right  to  build  a  dock  in  navigable  waters,  which  was 

«6  Carey  v.  Railway,  150  U.  S.  170,  14  Sup.  Ct.  63,  37  L.  Ed.  1041. 

so  Treat  Mfg.  Co.  v.  Iron  Co.,  157  U.  S.  674,  15  Sup.  Ct.  718,  39  L. 
Ed.  853. 

37  Cosmopolitan  Min.  Co.  v.  Walsh,  193  TJ.  S.  460,  24  Sup.  Ct.  489, 
48  L.  Ed.  749. 

ss  Merritt  v.  College,  169  U.  S.  551,  18  Sup.  Ct.  415,  42  L.  Ed.  850. 

3»  Boske  v.  Comingore,  177  U.  S.  459,  20  Sup.  Ct.  701,  44  L.  Ed. 
846. 

♦o  MOTES  v.  U.  S.,  178  U.  S.  458,  20  Sup.  Ct.  993,  44  L.  Ed.  1150. 

4i  Wiley  v.  Sinkler,  179  U.  S.  58,  21  Sup.  Ct.  17,  45  L.  Ed.  84. 


182)       APPEALS  FROM  DISTRICT  AND  CIRCUIT   COURTS. 


4G5 


claimed  under  certain  acts  of  Congress  and  a  permit  from  the 
Secretary  of  War,  and  which  was  disputed,  involves  a  consti- 
tutional question.42 

(2)  "In  Any  Case  in  Which  the  Constitutionality  of  Any  Law 

of  the  United  States  *  *  *  is  Drazvn  in  Question." 
It  is  important  to  observe  here  that  this  class  of  jurisdiction 
in  the  Supreme  Court  only  applies  where  the  constitutionality 
of  the  federal  statute  is  questioned.  A  mere  question  of  con- 
struction under  a  federal  statute  does  not  come  within  this 
class.43  It  will  thus  be  seen  that  there  are  many  federal  ques- 
tions of  which  the  federal  trial  courts  have  jurisdiction,  but 
which  do  not  fall  within  this  class — such  as  questions  involv- 
ing the  mere  construction  of  a  federal  statute,  and  not  its  valid- 
ity. Such  cases  cannot  go  by  direct  appeal  from  the  courts 
of  original  jurisdiction  to  the  Supreme  Court,  but  it  will  be 
seen,  in  discussing  the  jurisdiction  of  the  Supreme  Court  over 
cases  from  the  circuit  courts  of  appeals,  that  the  decision  of 
the  circuit  courts  of  appeals  is  not  final  in  such  cases,  and 
that,  therefore,  if  they  involve  a  sufficient  amount,  they  can 
be  taken  to  the  Supreme  Court  from  that  court.  But  wherever 
the  validity  of  a  federal  statute  is  questioned,  the  appeal  lies 
directly  to  the  Supreme  Court.44 

(3)  "In  Any  Case  in  Which     *     *    *     the  Validity  or  Con- 

struction of  Any  Treaty  Made  Under  Its  Authority  is 
Drazvn  in  Question." 
Here,  too,  it  must  appear  that  the  validity  or  construction 
of  a  treaty  was  actually  involved  or  passed  upon.45     Where 

42  Cummings  v.  Chicago,  188  U.  S.  410,  23  Sup.  Ct.  472,  47  L.  Ed.  525. 

4  3  Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397,  24  Sup. 
Ct.  376,  48  L.  Ed.  496. 

44  Horner  v.  U.  S.,  143  U.  S.  570,  12  Sup.  Ct.  522,  36  L.  Ed.  266 
(involving  the  constitutionality  of  section  3894  of  the  Revised  Stat- 
utes, forbidding  the  use  of  the  mails  for  lotteries) ;  CI1APPELL  v.  U. 
S.,  160  U.  S.  499,  16  Sup.  Ct.  397,  40  L.  Ed.  510  (involving  the  valid- 
ity of  a  federal  condemnation  act). 

4  5  Muse  v.  Hotel  Co.,  168  U.  S.  430,  18  Sup.  Ct.  109,  42  L.  Ed.  531. 

Hughes  Fed.Jur. — 30 


466  APPELLATE   JURISDICTION.  (Ch.  21 

a  treaty  comes  before  the  court  only  in  an  incidental  way,  as 
part  of  the  history  of  a  case,  or  as  relevant  to  some  main  issue 
involved,  this  is  not  sufficient  to  confer  jurisdiction  on  the 
Supreme  Court  under  this  section.46  But  where  the  construc- 
tion of  the  treaty  is  necessary  for  the  decision,  although  it 
may  be  connected  with  other  questions  in  the  case,  the  Supreme 
Court  has  jurisdiction.47 
(4)  "In  Any  Case  in  Which  the  Constitution  or  Law  of  a  State 

is  Claimed  to  be  in  Contravention  of  the  Constitution  of 

the  United  States." 
It  has  always  been  the  policy  of  Congress  to  make  the  Su- 
preme Court  the  final  arbiter  of  questions  of  this  character,  it 
being  the  only  class  in  which  an  appeal  lies  from  a  state  court 
to  a  federal  court,  as  will  be  seen  hereafter. 

But  such  right  of  review  of  the  inferior  federal  courts  of 
original  jurisdiction  by  the  Supreme  Court  can  be  invoked  only 
by  the  party  actually  affected.  For  instance,  a  city  cannot  set 
up  that  an  act  extending  boundaries  deprives  residents  of  the 
outlying  territory  of  their  property  without  due  process  when 
the  parties  themselves  have  made  no  complaint.48  And  the 
Supreme  Court  has  the  right  to  review  the  entire  case  under 
this  section,  even  though  the  lower  court  has  certified  a  ques- 
tion up  as  a  jurisdictional  question,  for  it  is  not  in  the  power 
of  the  lower  court  to  narrow  the  jurisdiction  of  the  Supreme 
Court  by  such  a  certificate.49 

One  of  the  most  numerous  classes  of  cases  involving  the  va- 
lidity of  state  legislation  is  where  such  legislation  is  claimed  to 
impair  the  obligation  of  a  contract.60     The  question  whether 

46  Borgmeyer  v.  Idler,  159  U.  S.  408,  16  Sup.  Gt.  34,  40  L.  Ed.  199; 
Sloan  v.  U.  S.,  193  TJ.  S.  614,  24  Sup.  Ct.  570,  48  L.  Ed.  814;  The 
Pilot,  53  Fed.  11,  3  C.  C.  A.  392. 

47  Rice  v.  Ames,  180  U.  S.  371,  21  Sup.  Ct.  406,  45  L.  Ed.  577; 
Mitchell  v.  Furman,  180  U.  S.  402,  21  Sup.  Ct.  430,  45  L.  Ed.  596; 
Pettit  v.  Walshe,  194  U.  S.  205,  24  Sup.  Ct.  658,  48  L.  Ed.  938. 

48  Lampasas  v.  Bell,  ISO  TJ.  S.  276,  21  Sup.  Ct.  368,  45  L.  Ed.  527. 
4»  Giles  v.  Harris,  1S9  U.  S.  475,  23  Sup.  Ct.  639,  47  L.  Ed.  909. 
so  PENN  MUT.  LIFE  INS.  CO.  v.  AUSTIN,  168  U.  S.  685,  18  Sup. 


§  182)       APPEALS  FROM   DISTRICT  AND  CIRCUIT  COURTS.  467 

state  legislation  denies  the  equal  protection  of  the  laws  has 
also  been  the  subject  of  many  such  cases.61  The  language 
of  all  these  subdivisions  to  section  5  clearly  gives  an  appeal 
to  the  Supreme  Court  only  from  such  proceedings  in  court  as 
would  constitute  a  case,  and  not  from  proceedings  of  a  mere 
administrative  character  which  happen  to  be  vested  in  a  district 
court.62  And  in  all  these  cases  the  Supreme  Court  has  juris- 
diction regardless  of  the  amount  involved.83 

(e)  Prosecutions  for  Obstructions  to  Navigation  by  Bridges. 

Under  the  eighteenth  section  of  the  act  of  March  3,  1899, 
in  relation  to  rivers  and  harbors,  power  is  given  to  the  Secre- 
tary of  War,  acting  through  the  district  attorney,  to  institute 
criminal  proceedings  against  parties  constructing  bridges  in 
such  a  way  as  to  constitute  an  unreasonable  obstruction  to 
free  navigation.  It  makes  such  act  on  the  part  of  the  person 
so  obstructing  the  navigation  a  misdemeanor  punishable  by 
fine,  if  he  does  not  remove  the  obstruction  within  a  certain 
time  after  notice.  It  provides  that  an  appeal  from  any  case 
arising  under  the  provisions  of  this  section  may  be  taken  direct 
to  the  Supreme  Court,  either  by  the  United  States  or  by  the 
defendants.54 

(/)  Suits  by  the  United  States  under  the  Anti-Trust  Acts. 

The  act  of  February  11,  1903, 5B  provides  in  its  second  sec- 
tion that  any  suit  in  equity  brought  under  the  anti-trust  acts 

Ct.  223,  42  L.  Ed.  626;  Pikes  Peak  Power  Co.  v.  Colorado  Springs. 
105  Fed.  1,  44  C.  C.  A.  333;  Illinois  Cent.  R.  Co.  v.  Adams,  180  U. 
S.  28,  21  Sup.  Ct.  251,  45  L.  Ed.  410. 

si  Connolly  v.  Sewer  Pipe  Co.,  184  U.  S  540,  22  Sup.  Ct.  431,  46 
L.  Ed.  679;  Fidelity  Mut.  Life  Ass'n  v.  Mettler,  185  U.  S.  308,  22 
Sup.  Ct.  662,  46  L.  Ed.  922. 

62  PACIFIC  STEAM  WHALING  CO.  v.  U.  S.,  187  U.  S.  447,  23 
Sup.  Ct.  154,  47  L.  Ed.  253. 

6  3  Kirby  v.  Soda  Fountain  Co.,  194  U.  S.  141,  24  Sup.  Ct.  619,  48 
L.  Ed.  911. 

54  30  Stat.  1153  [U.  S.  Comp.  St.  1901,  p.  3545]. 

65  32  Stat.  823,  c.  544  [U.  S.  Comp.  St.  Supp.  1903,  p.  377]. 


4GS  ArPBLLATE    JURISDICTION.  (Ch.  21 

wherein  the  United  States  is  complainant,  may  be  taken  direct 
to  the  Supreme  Court.68 


APPEALS  FROM  THE  CIRCUIT  COURTS  OF  APPEALS. 

183.    The  Supreme  Court  exercises  appellate  jurisdiction  over 
the  circuit  court  of  appeals: 

(a)  By  certificate  from  the  circuit  court  of  appeals  when  the 

judges  of  that  court  desire  to  certify  a  question  to  the 
Supreme  Court  for  its  decision. 

(b)  By  writ  of  certiorari  from  the  Supreme  Court  to  the  cir- 

cuit court  of  appeals  when  the  judges  of  the  Supreme 
Court  desire  to  review  in  the  highest  court  the  decision 
of  some  question  of  great  importance. 

(c)  By  appeal  or  writ  of  error  in  all  cases  in  which  the  de- 

cision of  the  circuit  court  of  appeals  is  not  final. 

(d)  In  certain  cases  under  the  bankrupt  act.  . 

The  first  paragraph  of  the  sixth  section  of  the  act  of  March 
3,  1891,  provides  as  follows: 

"That  the  circuit  courts  of  appeals  established  by  this  act 
shall  exercise  appellate  jurisdiction  to  review  by  appeal  or  by 
writ  of  error  final  decision  in  the  district  court  and  the  exist- 
ing circuit  courts  in  all  cases  other  than  those  provided  for 
in  the  preceding  section  of  this  act,  unless  otherwise  provided 
by  law,  and  the  judgments  or  decrees  of  the  circuit  courts  of 
appeals  shall  be  final  in  all  cases  in  which  the  jurisdiction  is 
dependent  entirely  upon  the  opposite  parties  to  the  suit  or  con- 
troversy being  aliens  and  citizens  of  the  United  States  or  citi- 
zens of  different  states;  also  in  all  cases  arising  under  the 
patent  laws,  under  the  revenue  laws  and  under  the  criminal 
laws  and  in  admiralty  cases,  excepting  that  in  every  such  sub- 
ject within  its  appellate  jurisdiction  the  circuit  court  of  ap- 
peals at  any  time  may  certify  to  the  Supreme  Court  of  the 
United  States  any  questions  or  propositions  of  law  concerning 

B.o  NORTHERN  SECURITIES  CO.  v.  U.  S.,  193  U.  S.  197.  24  Snp. 
Ct.  436,  48  L.  Ed.  679 ;  Interstate  Commerce  Commission  v.  Baird, 
194  U.  S.  25,  24  Slip.  Ct.  563,  4S  L.  Ed.  S60. 


§  183)      APPEALS   FROM   CIRCUIT   COURTS  OF  APPEALS.  469 

which  it  desires  the  instruction  of  the  court  for  its  proper 
decision,  and  thereupon  the  Supreme  Court  may  either  give 
its  instruction  on  the  questions  and  propositions  certified  to 
it,  which  shall  be  binding  upon  the  circuit  courts  of  appeals 
in  such  case,  or  it  may  require  that  the  whole  record  and  cause 
may  be  sent  up  to  it  for  its  consideration,  and  thereupon  shall 
decide  the  whole  matter  in  controversy  in  the  same  manner 
as  if  it  had  been  brought  there  for  review  by  writ  of  error  or 
appeal." 

(a)  Review  on  Certificate. 

Under  this  paragraph,  the  first  method  in  which  the  Supreme 
Court  can  acquire  jurisdiction  to  review  cases  in  the  circuit 
courts  of  appeals  is  by  a  certificate  from  the  latter  court,  the 
object  of  which  is  to  present  to  the  Supreme  Court  definite, 
clear-cut  propositions  of  law. 

There  is  some  ambiguity  whether  this  certificate  can  be  is- 
sued in  any  case  of  which  the  circuit  court  of  appeals  has  juris- 
diction, or  only  in  those  cases  of  which  it  has  final  jurisdic- 
tion. The  more  natural  construction  of  the  words  "in  every 
such  subject  within  its  appellate  jurisdiction,"  which  precede 
the  provision  as  to  the  certificate,  would  seem,  however,  to  be 
that  they  allude  to  the  appellate  jurisdiction  to  review  by  appeal 
or  writ  of  error  all  the  decisions  of  the  district  and  circuit 
courts  except  those  provided  for  by  the  fifth  section,  and  that 
the  words  above  quoted  qualify  this  first  part  of  the  section, 
and  not  simply  the  part  immediately  preceding  them,  which 
specify  the  cases  of  final  jurisdiction.  The  object  of  the  cer- 
tificate will  apply  to  both  alike,  and  it  is  not  only  more  natural 
to  suppose  that  the  circuit  courts  of  appeals  could  certify  ques- 
tions up  from  all  cases  in  its  jurisdiction  than  to  suppose  that 
they  were  limited;  but  this  view  is  also  strengthened  by  the 
fact  that,  in  the  subsequent  paragraph  relating  to  the  right 
of  the  Supreme  Court  to  issue  a  certiorari,  that  is  expressly 
limited  to  cases  made  final,  thus  drawing  a  distinction  between 
the  cases  going  up  by  a  certificate  and  cases  brought  up  by  cer- 
tiorari. 


470  APPELLATE    JURISDICTION.  (Ch.  21 

The  object  of  this  provision  and  its  limits  are  well  expressed 
in  the  following  language  taken  from  an  opinion  of  Mr.  Jus- 
tice Brewer: 

"It  may  be  proper  to  observe  that  the  purpose  of  the  act  of 
1891  creating  the  courts  of  appeals,  was  to  vest  final  juris- 
diction as  to  certain  classes  of  cases  in  the  courts  then  created ; 
and  this  in  order  that  the  docket  of  this  court  might  be  re- 
lieved, and  it  be  enabled  with  more  promptness  to  dispose  of 
the  cases  directly  coming  to  it.  In  order  to  guard  against 
any  injurious  results  which  might  flow  from  having  nine  ap- 
pellate courts  acting  independently  of  each  other,  power  was 
given  to  this  court  to  bring  before  it  by  certiorari  any  case 
pending  in  either  of  those  courts.  In  that  way  it  was  believed 
that  uniformity  of  ruling  might  be  secured,  as  well  as  the 
disposition  of  cases  whose  gravity  and  importance  rendered 
the  action  of  the  tribunal  of  last  resort  peculiarly  desirable, 
but  the  power  of  determining  what  cases  should  be  so  brought 
up  was  vested  in  this  court,  and  it  was  not  intended  to  give  to 
any  one  of  the  courts  of  appeals  the  right  to  avoid  the  respon- 
sibility cast  upon  it  by  statute  by  transmitting  any  case  it  saw 
fit  to  this  court  for  decision.  If  such  practice  were  tolerated, 
it  is  easy  to  perceive  that  the  purpose  of  the  act  might  be 
defeated,  and  the  courts  of  appeals,  by  transferring  cases  here, 
not  only  relieve  themselves  of  burden,  but  also  crowd  upon 
this  court  the  very  cases  which  it  was  the  intent  of  Congress 
they  should  finally  determine.  It  is  true,  power  was  given  to 
the  courts  of  appeals  to  certify  questions,  but  it  is  only  'ques- 
tions or  propositions  of  law'  which  they  are  authorized  to 
certify.  And  such  questions  must  be,  as  held  in  the  case 
just  cited,  'distinct  questions  or  propositions  of  law,  unmixed 
with  questions  of  fact,  or  of  mixed  law  and  fact.'  It  is  not 
always  easy  to  draw  the  line,  for,  in  order  to  present  a  distinct 
question  of  law,  it  may  sometimes  be  necessary  to  present 
many  facts  upon  which  that  question  is  based;  but  care  must 
always  be  taken  that,  under  the  guise  of  certifying  questions, 


§  183)      APPEALS   FROM   CIRCUIT  COURTS  OF  APPEALS.  471 

the  courts  of  appeals  do  not  transmit  the  whole  case  to  us  for 
consideration."  67 

The  form  of  this  certificate  is  prescribed  by  rule  37*  of  the 
United  States  Supreme  Court,  which  makes  the  following  re- 
quirements : 

"Where  under  section  6  of  the  said  act  a  circuit  court  of 
appeals  shall  certify  to  this  court  a  question  or  proposition  of 
law  concerning  which  it  desires  the  instruction  of  this  court 
for  its  proper  decision,  the  certificate  shall  contain  a  proper 
statement  of  the  facts  on  which  such  question  or  proposition 
of  law  arises." 

The  Supreme  Court  has  repeatedly  held  that  this  certificate 
should  present  separate,  independent  propositions  of  law,  and 
show  that  the  court  desired  instruction  upon  such  questions, 
and  that  it  could  not  be  used  for  certifying  up  questions  involv- 
ing an  examination  of  the  entire  record,  although  the  Supreme 
Court  may,  if  it  desires,  require  the  whole  record  to  be  sent 
up,  but  that  must  be  the  act  of  the  Supreme  Court,  not  of  the 
circuit  court  of  appeals.68 

The  Supreme  Court  has  also  said  that  a  good  analogy  to 
follow  in  the  framework  of  these  certificates  is  the  old  cer- 
tificate of  division  of  opinion,  in  use  before  these  more  recent 
provisions  regulating  appeals.68 

The  issuing  of  this  certificate  is  entirely  discretionary  with 
the  circuit  court  of  appeals,  and  it  should  issue  only  before  a 
decision  in  the  case,  and  when  the  court  entertains  a  real 
doubt.60 

67  WARNER  v.  NEW  ORLEANS,  167  U.  S.  474,  475,  17  Sup.  Ct 
892,  42  L.  Ed.  239. 

*11  Sup.  Ct.  iv. 

68  Columbus  Watch  Co.  v.  Robbins,  148  U.  S.  266,  13  Sup.  Ct  594, 
37  L.  Ed.  445;  Cincinnati,  H.  &  D.  R.  Co.  v.  McKeen,  149  U.  S.  259, 
13  Sup.  Ct.  840,  37  L.  Ed.  225. 

69  Graver  v.  Faurot,  162  U.  S.  435,  16  Sup.  Ct.  799,  40  L.  Ed.  1030 ; 
Emsheimer  v.  New  Orleans,  186  U.  S.  33,  22  Sup.  Ct.  770,  46  L.  Ed. 
1042 ;  Felsenheld  v.  U.  S.,  186  U.  S.  126,  22  Sup.  Ct.  740,  46  L.  Ed.  1085. 

eo  Louisiana,  N.  A.  &  C.  R.  Co.  v.  Pope,  74  Fed.  1,  20  C.  C.  A.  253; 


472  APPELLATE    JURISDICTION.  (Ch.  21 

The  facts  to  be  embodied  in  such  a  certificate  are  not  mere 
matters  of  evidence,  but  the  ultimate  facts  necessary  for  a  right 
understanding  of  the  question  involved.81  The  cases  referred 
to  in  the  footnote  to  this  sentence  contain  forms  of  such  cer- 
tificate which  may  be  useful  in  the  preparation  of  similar  cer- 
tificates.62 

(b)  Review  by  Certiorari. 

The  second  paragraph  of  section  6,  immediately  following 
the  part  above  quoted,  reads  as  follows : 

"And  excepting  also  that  in  any  such  case  as  is  hereinbefore 
made  final  in  the  circuit  court  of  appeals,  it  shall  be  competent 
for  the  Supreme  Court  to  require  by  certiorari  or  otherwise 
any  such  case  to  be  certified  to  the  Supreme  Court  for  its  re- 
view and  determination,  with  the  same  power  and  authority 
in  the  case  as  if  it  had  been  carried  by  appeal  or  writ  of  error 
to  the  Supreme  Court." 

It  is  clear  from  the  language  of  this  paragraph  that  the 
Supreme  Court  can  issue  a  certiorari  to  the  circuit  court  of 
appeals  only  in  the  cases  "hereinbefore  made  final" ;  that  is, 
in  the  cases  named  in  that  same  sixth  section  as  final.  This 
power  of  the  Supreme  Court  is  intended  for  use  only  in  excep- 
tional circumstances.  It  has  been  issued  only  in  questions  of 
gravity  and  general  importance,  or  in  cases  where  it  was  nec- 
essary to  settle  a  conflict  of  decision  between  inferior  courts.63 
It  has  been  issued  in  several  admiralty  cases  involving  ques- 

Andrews  v.  Pipe  Works,  77  Fed.  774,  23  C.  C.  A.  454,  36  L.  R.  A.  153; 
National  Foundry  &  Pipe  Works  v.  Supply  Co.,  183  U.  S.  216,  225, 
22  Sup.  Ct.  Ill,  46  L.  Ed.  157;  German  Ins.  Co.  v.  Hearne,  118  Fed. 
134,  55  C.  C.  A.  84. 

ei  Sigafus  v.  Porter,  85  Fed.  689,  29  C  C.  A.  391. 

ea  New  Orleans  v.  Benjamin,  153  TJ.  S.  411,  14  Sup.  Ct.  905,  38  L. 
Ed.  764;  Folsom  v.  U.  S.,  160  TJ.  S.  121,  16  Sup.  Ct.  222,  40  L.  Ed. 
363;  U.  S.  v.  Harsha,  172  U.  S.  567,  19  Sup.  Ct.  294,  43  L.  Ed.  550; 
Cincinnati,  H.  &  D.  R.  Co.  v.  Thiebaud,  177  TJ.  S.  615,  20  Sup.  Ct. 
822,  44  L.  Ed.  911. 

63  Ex  parte  Lau  Ow  Bew,  141  TJ.  S.  583,  12  Sup.  Ct.  43,  35  L.  Ed. 
868;    Columbus  Watch  Co.  v.  Bobbins,  148  TJ.  S.  266,  13  Sup.  Ct 


§  183)      APPEALS  FROM   CIRCUIT  COURTS   OF  APPEALS.  473 

tions  arising  out  of  the  international  rules  of  navigation,  and 
in  questions  arising  out  of  treaties,  on  account  of  the  interna- 
tional character  of  these  questions.  It  has  been  refused,  how- 
ever, on  questions  of  mere  local  law — as,  for  instance,  the 
question  whether  the  law  of  master  and  servant  was  properly 
applied  in  a  particular  case.84  It  may  be  issued  even  before 
a  final  decree  in  the  circuit  court  of  appeals,  if  the  case  is  an 
exceptional  one,  but  it  is  issued  in  such  cases  with  great  re- 
luctance.68 It  will  not  be  issued  in  a  case  where  the  circuit 
court  of  appeals  itself  had  no  jurisdiction.66 

As  the  statute  expressly  provides  that  such  a  case,  when 
certified,  goes  to  the  Supreme  Court,  with  the  same  power 
and  authority  in  the  case  as  if  it  had  been  carried  by  appeal 
or  writ  of  error,  it  follows  that  only  errors  complained  of  by 
the  petitioner  can  be  considered  by  the  Supreme  Court,  and 
that  the  party  who  has  applied  for  the  writ  cannot  complain 
of  any  errors  against  him.67 

When  issued  to  a  circuit  court  of  appeals,  after  a  second  ap- 
peal to  the  circuit  court  of  appeals  from  the  trial  court,  it 
brings  up  the  entire  case.68  No  limitation  is  expressly  pro- 
vided for  the  time  when  this  writ  may  issue,  but  it  has  been 
held  that  the  court  will  apply  the  limitation  of  one  year  to  direct 
appeals  from  the  circuit  court  of  appeals  by  analogy,  and  the 
writ  will  issue  even  though  the  circuit  court  of  appeals  has 
already  sent  its  mandate  down  to  the  lower  court.69 

It  is  an  interesting  question  whether  the  Supreme  Court  can 

594,  37  L.  Ed.  445;  FORSYTH  v.  HAMMOND,  166  U.  S.  506,  17  Sup 
Gt.  665,  41  L.  Ed.  1095. 

e*  In  re  Woods,  143  U.  S.  202,  12  Sup.  Ct.  417,  36  L.  Ed.  125. 

ee  American  Const.  Co.  v  Railway  Co.,  148  U.  S.  372,  385,  13  Sup. 
Ct  758,  37  L.  Ed.  486;  FORSYTH  v.  HAMMOND,  166  U.  S.  506,  17 
Sup.  Ct.  665,  41  L.  Ed.  1095. 

66  Goodshot  v.  U.  S.,  179  U.  S.  87,  21  Sup.  Ct.  33,  45  L.  Ed.  101. 

«7  Hubbard  v.  Tod,  171  U.  S.  474,  19  Sup.  Ct.  14,  43  L.  Ed.  246. 

es  Panama  R.  Co.  v.  Sbipping  Co.,  166  U.  S.  280,  17  Sup.  Ct.  572, 
41  L.  Ed.  1004. 

6»  The  Conqueror,  166  U.  S.  110,  17  Sup.  Ct.  510,  41  L.  Ed.  937. 


474  APPELLATE    JURISDICTION.  (Ch.  21 

issue  the  writ  in  any  case  of  which  the  court  of  appeals  has 
jurisdiction,  and  there  is  some  general  language  in  two  of  its 
decisions  implying  that  its  power  to  issue  the  writ  is  practically 
coextensive  with  the  appellate  jurisdiction  of  the  circuit  court 
of  appeals.70  But  the  language  of  the  paragraph  conferring 
the  right  to  issue  the  writ  seems  very  clearly  to  limit  it  to  those 
cases  "hereinbefore  made  final" ;  that  is,  to  cases  depending  on 
diverse  citizenship,  or  arising  under  the  patent  laws,  under 
the  revenue  laws,  under  the  criminal  laws,  and  in  admiralty 
cases.  Hence  important  questions  pending  in  a  lower  court 
may  be  out  of  the  reach  of  the  Supreme  Court  entirely.  If 
they  are  not  included  in  the  class  of  cases  "hereinbefore  made 
final,"  and  involve  less  than  a  thousand  dollars,  they  cannot  be 
reached  by  a  certiorari,  and  they  cannot  be  taken  from  the 
circuit  court  of  appeals  by  direct  appeal.  If  they  do  not  in- 
volve any  of  the  questions  mentioned  in  section  5,  they  could 
not  be  taken  to  the  Supreme  Court  direct  from  the  courts  of 
original  jurisdiction.  For  instance,  a  civil  suit  by  the  United 
States  for  an  amount  less  than  a  thousand  dollars  would  seem 
to  be  beyond  the  reach  of  the  Supreme  Court,  no  matter  how 
important  the  construction  of  the  statute  might  be  on  which 
the  right  of  recovery  would  hinge. 

(c)  By  Appeal  or  Writ  of  Error. 

The  third  paragraph  of  the  sixth  section,  immediately  fol- 
lowing the  paragraph  last  quoted,  reads  as  follows : 

"In  all  cases  not  hereinbefore  in  this  section  made  final 
there  shall  be  of  right  an  appeal  or  writ  of  error  or  review  of 
the  case  by  the  Supreme  Court  of  the  United  States  where  the 
matter  in  controversy  shall  exceed  one  thousand  dollars  be- 
sides costs.  But  no  such  appeal  shall  be  taken  or  writ  of  error 
sued  out  unless  within  one  year  after  the  entry  of  the  order,, 
judgment  or  decree  sought  to  be  reviewed." 

The  question  what  cases  are  final,  and  what  are  not,  has 

to  Lau  Ow  Bew  v.  U.  S.,  144  U.  S.  47,  12  Sup.  Ct.  517,  36  L.  Ed. 
340;  FORSYTH  v.  HAMMOND,  166  U.  S.  506,  17  Sup.  Ct.  665,  41 
L.  Ed.  1095. 


§  183)      APPEALS   FROM   CIRCUIT   COURTS   OF   APPEALS.  475 

been  touched  upon  in  the  previous  chapter,  in  connection  with 
the  jurisdiction  of  the  circuit  court  of  appeals. 

The  rules  regulating  the  course  of  appeal  in  this  class  of 
questions  are  well  summarized  in  a  recent  decision  of  the  Su- 
preme Court  to  the  effect  that  the  decision  of  the  circuit  court 
of  appeals  is  final  if  the  jurisdiction  of  the  trial  court  was  first 
invoked  on  the  ground  of  diverse  citizenship.  If,  on  the  other 
hand,  the  jurisdiction  was  first  invoked  on  the  ground  of  di- 
verse citizenship,  and  a  constitutional  question  subsequently 
arises,  the  case  can  go  either  to  the  circuit  court  of  appeals 
or  to  the  Supreme  Court,  but  not  to  both.  If  the  jurisdiction 
of  the  trial  court  was  invoked  both  on  the  ground  of  diverse 
citizenship  and  a  federal  question  (not  necessarily  a  constitu- 
tional question),  then  the  jurisdiction  of  the  circuit  court  of 
appeals  is  not  final.71  On  the  other  hand,  a  decree  on  a  peti- 
tion of  intervention  in  an  equity  suit  against  a  receiver  for 
personal  injuries  is  reviewable  by  the  circuit  court  of  appeals 
where  the  jurisdiction  in  the  main  suit  depended  on  diverse 
citizenship,  but,  if  an  independent  common-law  suit  had  been 
brought  against  the  receiver,  then  it  would  not  be  final,  as 
the  jurisdiction  in  such  case  would  not  be  based  on  diverse 
citizenship.72  So,  too,  where  the  jurisdiction  was  invoked  on 
the  ground  of  diverse  citizenship,  but  the  case  was  dismissed 
because  the  suit  was  by  an  assignee  in  a  case  where  his  as- 
signor could  not  have  sued,  the  decision  of  the  circuit  court 
of  appeals  was  final,  for  it  depended  in  the  first  instance  on 
diverse  citizenship,  even  though  it  did  not  come  within  a  well- 
recognized  exception.78 

Where  a  suit  originally  depended  on  diverse  citizenship,  a 
federal  question  is  not  raised  by  the  charge  that  a  state  officer 
erroneously  construed  a  state  law  so  as  to  deprive  complainants 

7i  HUGULEY  MFG.  CO.  v.  COTTON  MILLS,  184  U.  S.  290,  22  Sup. 
Ct.  452,  46  L.  Ed.  546. 

72  Rouse  v.  Hornsby,  161  U.  S.  588,  16  Sup.  Ct.  610,  40  L.  Ed.  817. 

73  Benjamin  v.  New  Orleans,  169  U.  S.  161,  18  Suo.  Ct.  298.  42  L. 
Ed.  700. 


476  APPELLATE   JURISDICTION.  (Ch.  21 

of  their  property  without  due  process  of  law,  and  to  deny  them 
the  equal  protection  of  the  laws,  for  the  act  complained  of  in 
such  case  is  not  the  state  law  itself,  but  the  erroneous  action 
of  an  officer  under  it.74 

A  suit  against  a  railway  for  loss  of  a  registered  package 
from  the  mails  by  negligence  raises  no  federal  question,  and, 
if  the  trial  court  acquire  jurisdiction  by  reason  of  diverse  citi- 
zenship, the  appeal  would  go  to  the  circuit  court  of  appeals 
alone.75  On  the  other  hand,  a  suit  against  a  corporation  claim- 
ing its  charter  by  act  of  Congress  involves  a  federal  question, 
and  hence  the  decision  of  the  circuit  court  of  appeals  is  not 
final.78  So,  too,  a  suit  against  a  marshal  for  a  wrongful  at- 
tachment raises  a  federal  question,  as  it  involves  his  official 
acts,  and  the  decision  of  the  circuit  court  of  appeals  is  not 
final.77  So  a  suit  on  a  clerk's  bond  for  money  paid  into  court, 
and  not  accounted  for  by  him,  involving  the  right  of  litigants 
to  proceed  on  such  bond.78  So  a  suit  against  a  receiver  of  a 
national  bank,  for  he  is  an  officer  of  the  United  States.79  So 
a  suit  by  a  foreign  state.80  So  a  suit  in  which  the  ground  of 
jurisdiction  was  not  only  diverse  citizenship,  but  an  alleged 
infringement  of  a  trade-mark,  for  the  jurisdiction  in  such  case 
does  not  "depend  entirely"  upon  diverse  citizenship.81 

i*  Arbuckle  v.  Blackburn,  191  U.  S.  405,  24  Sup.  Ct.  148,  48  L.  Ed. 
239. 

7  5  Bankers'  Mut.  Casualty  Co.  v.  Railway  Co.,  192  U.  S.  371,  24 
Sup.  Ct.  325,  48  L.  Ed.  484. 

76  Northern  Pac.  R.  Co.  v.  Amato,  144  U.  S.  465,  12  Sup.  Ct.  740, 
36  L.  Ed.  596;  Union  Pac.  R.  Co.  v.  Harris,  158  U.  S.  326,  15  Sup. 
Ct.  843,  39  L.  Ed.  1003. 

77  Sonnentheil  v.  Brewing  Co.,  172  U.  S.  401,  19  Sup.  Ct.  233,  43 
L.  Ed.  492. 

7  8  Howard  v.  U.  S.,  184  U.  S.  676,  22  Sup.  Ct  543,  46  L.  Ed.  754. 

7  9  Auten  v.  Bank,  174  U.  S.  125,  19  Sup.  Ct.  628,  43  L.  Ed.  920. 

so  Colombia  v.  Cauca  Co.,  190  U.  S.  524,  23  Sup.  Ct  704,  47  L.  Ed. 
1159. 

si  Warner  v.  Searle  &  Hereth  Co.,  191  U.  S.  195,  24  Sup.  Ct  79: 
48  L.  Ed.  145. 


§  183)      APPEALS   FROM    CIRCUIT   COURTS    OF   APPEALS.  477 

(d)  Appeals  under  the  Bankrupt  Act. 

Section  25  of  the  bankrupt  act  provides  as  follows: 

"(b)  From  any  final  decision  of  a  court  of  appeals  allowing 
or  rejecting  a  claim  under  this  act,  an  appeal  may  be  had  un- 
der such  rules  and  within  such  time  as  may  be  prescribed  by 
the  Supreme  Court  of  the  United  States  in  the  following  cases 
and  no  other : 

"(1)  Where  the  amount  in  controversy  exceeds  the  sum  of 
two  thousand  dollars,  and  the  question  involved  is  one  which 
might  "have  been  taken  on  appeal  or  writ  of  error  from  the 
highest  court  of  a  state  to  the  Supreme  Court  of  the  United 
States ;   or 

"(2)  Where  some  justice  of  the  Supreme  Court  of  the  United 
States  shall  certify  that  in  his  opinion  the  determination  of 
the  question  or  questions  involved  in  the  allowance  or  rejection 
of  such  claim  is  essential  to  a  uniform  construction  of  this 
act  throughout  the  United  States. 

"(c)  Trustees  shall  not  be  required  to  give  bond  when  they 
take  appeals  or  sue  out  writs  of  error. 

"(d)  Controversies  may  be  certified  to  the  Supreme  Court 
of  the  United  States  from  other  courts  of  the  United  States, 
and  the  former  court  may  exercise  jurisdiction  thereof  and 
issue  writs  of  certiorari  pursuant  to  the  provisions  of  the  United 
States  laws  now  in  force  or  such  as  may  be  hereafter  en- 
acted." 82 

The  right  of  appeal  under  this  section  does  not  go  to  decrees 
in  revision  passing  on  the  mere  question  of  the  exemption  of 
an  insurance  policy,  as  that  does  not  fall  within  the  classes 
enumerated.83  But  the  right  to  issue  certiorari  under  the  last 
paragraph  applies  to  decrees  in  revision  as  well  as  to  appeals.84 

•  2  TJ.  S.  Comp.  St.  1901,  p.  3432. 

8  3  HOLDEN  v.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct.  45,  4S  L. 
Ed.  116. 

84  HOLDEN  v.  STRATTON,  191  U.  S.  115,  24  Sup.  Ct.  45,  48  L, 
Ed.  116. 


478  APPELLATE   JURISDICTION.  (Ch.  21 


APPEALS  FROM  TERRITORIAL  COURTS. 

184.  Appeals  from  the  supreme  courts  of  the  territories  are 
taken  to  the  Supreme  Court  of  the  United  States,  pro- 
vided the  matter  in  dispute,  exclusive  of  costs,  exceeds 
the  sum  of  five  thousand  dollars,  except  in  those  cases 
where  the  circuit  courts  of  appeals  have  appellate  ju- 
risdiction. When  the  case  involves  the  validity  of  any 
(patent  or  copyright,  or  if  the  validity  of  a  treaty  or 
statute  of,  or  an  authority  exercised,  under  the  United 
States,  is  drawn  in  question,  the  appeal  to  the  Supreme 
Court  is  independent  of  the  amount  in  dispute. 

Section  702  of  the  Revised  Statutes,  as  modified  by  the  act 
of  March  3,  1885, 85  provides  for  the  review  of  the  final  judg- 
ments and  decrees  of  the  Supreme  Court  of  the  territories 
where  the  matter  in  dispute,  exclusive  of  costs,  exceeds  the 
sum  of  five  thousand  dollars,  except  that  if  the  case  involves 
the  validity  of  any  patent  or  copyright,  or  if  the  validity  of  a 
treaty  or  statute  of,  or  an  authority  exercised  under,  the 
United  States,  is  drawn  in  question,  the  review  is  independent 
of  amount  in  dispute.  This  has  been  impliedly  narrowed  by 
the  fifteenth  section  of  the  act  of  March  3,  1891,  giving  the 
circuit  courts  of  appeals  jurisdiction  over  the  judgments  of 
the  Supreme  Courts  of  the  territories  wherever  the  decisions 
of  such  circuit  courts  of  appeals  would  be  final  if  the  appeal 
had  been  taken  from  the  district  or  circuit  courts.  These 
cases,  as  has  been  seen,  would  go  to  the  circuit  courts  of  ap- 
peals, but  all  other  cases  covered  by  section  702,  and  the  act 
of  March  3,  1885,  would  go  to  the  Supreme  Court.88  The 
Supreme  Court,  however,  has  not  jurisdiction  in  such  case 
unless  the  amount  involved  is  over  five  thousand  dollars.  For 
instance,  in  a  suit  for  divorce,  where  the  only  decree  is  a  decree 
of  divorce,  it  would  not  have  jurisdiction,  but,  where  an  allow- 
so  U.  S.  Comp.  St.  1901,  pp.  571,  572. 

se  Shute  v.  Keyser,  149  U.  S.  649,  13  Sup.  Ct.  960,  37  L.  Ed.  S84; 
Aztec  Min.  Co.  v.  Ripley,  151  U.  S.  79,  14  Sup.  Ct.  236,  38  L.  Ed.  80. 


§  185;  APPEALS   FROM   DISTRICT   OF   COLUMBIA.  479 

ance  of  alimony  and  counsel  fees  exceeded  five  thousand  dol- 
lars, it  would  have  jurisdiction.87 

The  recent  act  of  April  12,  1900,  giving  a  right  of  review 
of  the  Porto  Rico  court  of  last  resort,  is  cognate  to  this  sub- 
ject of  the  review  of  territorial  courts.88  Under  this  act  sev- 
eral cases  have  already  been  taken  to  the  Supreme  Court.89 
The  act  of  July  1,  1902,90  gives  a  review  to  the  Supreme  Court 
of  decisions  of  the  supreme  court  of  the  Philippines,  though 
it  is  carefully  guarded  as  to  the  character  of  questions  involved, 
and  as  to  the  amount 


APPEALS  FROM  THE  COURT  OF  APPEALS  OF  THE 
DISTRICT  OF  COLUMBIA. 

185.  The  act  of  February  9,  1893,»i  gives  the  right  of  re- 
view to  the  Supreme  Court  over  decisions  of  the  court 
of  appeals  of  the  District  of  Columbia;  the  pecuniary 
limit  of  five  thousand  dollars,  however,  applying  to  all 
such  appeals  except  those  involving  the  validity  of  any 
patent  or  copyright,  or  in  which  is  drawn  in  question 
the  validity  of  a  treaty  or  statute  of,  or  an  authority 
exercised  under,  the  United  States. 

Under  this  provision  no  appeal  lies  to  the  Supreme  Court 
in  ordinary  criminal  cases.92  However,  a  suit  questioning  the 
validity  of  a  regulation  of  the  Commissioner  of  Patents  draws 
in  question  "the  validity  of  an  authority  exercised  under  the 

87  Simms  v.  Simms,  175  U.  S.  162,  20  Sup.  Ct.  58,  44  L.  Ed.  115. 

•s  31  Stat.  85,  c.  191. 

8  9  Royal  Ins.  Co.  v.  Martin,  192  U.  S.  149,  24  Sup.  Ct.  247,  48  L. 
Ed.  385 ;  Hijo  v.  U.  S.,  194  U.  S.  315,  24  Sup.  Ct.  727,  48  L.  Ed.  994; 
Crowley  v.  U.  S.,  194  U.  S.  461,  24  Sup.  Ct.  731,  48  L.  Ed.  1075. 

•o  32  Stat.  695,  c.  1369  [U.  S.  Comp.  St.  Supp.  1903,  p.  93]. 

»i  27  Stat.  436,  c.  74  [U.  S.  Comp.  St.  1901,  p.  573].  See,  also, 
Act  March  3,  1901,  c.  854,  31  Stat.  1189. 

92  Chapman  v.  U.  S.,  164  U.  S.  436,  17  Sup.  Ct.  76,  41  L.  Ed.  504; 
Sinclair  v.  District  of  Columbia,  192  U.  S.  16,  24  Sup.  Ct.  212,  48  L. 
Ed.  322. 


480  APPELLATE    JURISDICTION.  (Ch.  21 

United  States,"  and  can  be  taken  to  the  Supreme  Court  inde- 
pendent of  the  amount  involved.98 

APPEALS  FROM  THE  COURT  OF  CLAIMS. 

186.  Decisions  of  this  court  against  the  United  States  for  more 

(than  three  thousand  dollars,  and,  in  an  exceptional 
case,  decisions  in  favor  of  the  United  States  are  review- 
able by  the  Supreme  Court,  under  sections  707  and  708 
of  the  Revised  Statutes. 8* 

APPEALS  FROM  THE  COURT  OF  PRIVATE  LAND  CLAIMS. 

187.  Under  section  9  of  the  act  of  March  3,  1891, »u  decisions 
of  this  court  are  reviewable  by  the  Supreme  Court  by 
appeal,  in  which  case  the  Supreme  Court  considers 
questions  both  of  fact  and  law,  and  may  cause  addi- 
tional testimony  to  be  taken. 

REVIEW  OF  STATE  COURT  DECISIONS. 

188.  In  order  to  insure  the  proper  administration  of  federal 
laws,  the  Supreme  Court  is  given  jurisdiction  to  review 
by  -writ  of  error  the  final  decisions  of  the  state  court 
which  is  the  court  of  last  resort  in  the  special  in- 
stance, in  cases  involving  any  question  of  conflict  be- 
tween state  and  federal  laws  or  authority,  where  such 
decision  is  against  the  federal  law  or  authority;    that 

is,  in  cases  involving  constitutional  questions  as  to  the 
relative  boundaries  of  state  and  federal  rights. 

The  right  to  review  decisions  of  state  courts  is  given  by  sec- 
tion 709  of  the  Revised  Statutes,98  which,  as  last  amended, 
reads  as  follows: 

"A  final  judgment  or  decree  in  any  suit  in  the  highest  court 
of  a  state  in  which  a  decision  in  the  suit  could  be  had  where 

»3  u.  S.  v.  Allen.  192  U.  S.  543,  24  Sup.  Ct.  416,  48  L.  Ed,  555. 

»4  U.  S.  Comp.  St.  1901,  pp.  574,  575. 

8  5  26  Stat.  858,  c.  539  [U.  S.  Comp.  St.  1901,  p.  769]. 

96  U.  S.  Comp.  St.  1901,  p.  575. 


§  189)  REVIEW    OF    STATE    COURT    DECISIONS.  4S1 

is  drawn  in  question  the  validity  of  a  treaty  or  statute  of  or  \ 
an  authority  exercised  under  the  United  States,  and  the  deci- 
sion is  against  their  validity;  or  where  is  drawn  in  question 
the  validity  of  a  statute  of  or  an  authority  exercised  under  any 
state  on  the  ground  of  their  being  repugnant  to  the  Constitu- 
tion, treaties,  or  laws  of  the  United  States,  and  the  decision  is 
in  favor  of  their  validity,  or  where  any  title,  right,  privilege 
or  immunity  is  claimed  under  the  Constitution  or  any  treaty 
or  statute  of  or  commission  held  or  authority  exercised  under 
the  United  States,  and  the  decision  is  against  the  title,  right, 
privilege  or  immunity  specially  set  up  or  claimed  by  either 
party  under  such  Constitution,  treaty,  statute,  commission  or 
authority,  may  be  re-examined  and  reversed  or  affirmed  in 
the  Supreme  Court  upon  a  writ  of  error.  The  writ  shall  have 
the  same  effect  as  if  the  judgment  or  decree  complained  of  had 
been  rendered  or  passed  in  a  court  of  the  United  States. 

"The  Supreme  Court  may  reverse,  modify  or  affirm  the  judg 
ment  or  decree  of  such  state  court,  and  may  at  their  discretion 
award  execution  or  remand  the  same  to  the  court  from  which 
it  was  removed  by  the  writ." 

This  is  the  famous  twenty-fifth  section  of  the  judiciary  act 
of  1789.  Its  validity  and  policy  were  not  sustained  without 
contest. 

SAME— CONSTITUTIONALITY. 

189.  The  right  of  Congress  to  give  a  review  to  the  Supreme 
Court  of  decisions  of  the  state  courts  on  federal  ques- 
tions, though  once  vigorously  contested,  is  settled  by 
decisions. 

After  exercising  this  right  of  review  without  question  in 
several  cases,  it  was  vigorously  denied  by  the  supreme  court  of 
appeals  of  Virginia.  In  a  case  where  its  decision  was  reversed, 
and  where  the  United  States  Supreme  Court  sent  down  the 
mandate  directing  them  to  enter  judgment  in  accordance  with 
the  views  of  the  federal  court,  the  Virginia  court  refused  to 
Hughes  Fed.  Jue. — 31 


482  APPELLATE   JURISDICTION.  (Ch.  21 

obey  the  mandate,  and  entered  upon  its  records  an  order  recit- 
ing- that  it  did  so  because  it  did  not  consider  that  the  Consti- 
tution authorized  Congress  to  give  a  right  of  review  of  the 
decisions  of  the  state  courts.97  Thereupon  the  Supreme  Court 
reviewed  the  grounds  of  the  refusal  of  the  Virginia  court,  and 
decided  in  favor  of  the  constitutionality  of  the  act.98  The 
ground  on  which  the  Virginia  court  denied  the  validity  of  the 
act  was  that  the  federal  Constitution,  properly  construed,  only 
authorized  the  right  of  review  of  decisions  of  federal  courts; 
that  the  description  of  the  judicial  power  contained  in  the  Con- 
stitution evidently  only  referred  to  the  jurisdiction  of  the  fed- 
eral courts;  that  the  states,  in  the  powers  reserved  to  them, 
were  as  supreme  as  the  federal  government  in  the  powers  dele- 
gated to  it ;  that  the  two,  therefore,  were  co-ordinate,  and  the 
state  courts  not  inferior,  but  co-ordinate,  to  the  federal  courts. 
This  view,  however,  was  combated,  not  only  in  the  same  case, 
but  in  subsequent  decisions  of  the  Supreme  Court,  and  must 
be  considered  as  settled.99 

97  Hunter  v.  Martin,  4  Munf.  1. 

»s  Martin  v.  Hunter,  1  Wheat.  304,  4  L.  Ed.  97. 

»9  Cohens  v.  Virginia,  6  Wheat.  264,  5  L.  Ed.  257;  WILLIAMS  v. 
BItUFFY,  102  U.  S.  248,  26  L.  Ed.  135.  To  the  student  of  our 
political  history,  the  opinion  of  Judge  Roane  in  the  Virginia  court 
of  appeals,  denying  the  validity  of  the  act,  and  the  opinion  of  Chief 
Justice  Marshall  in  Cohens  v.  Virginia,  6  Wheat.  264,  5  L.  Ed.  257, 
upholding  it,  must  ever  remain  models  of  powerful  judicial  reason- 
ing; and  the  opinion  of  Judge  Roane  is  well  worthy,  not  only  from 
its  logical  force,  but  its  literary  excellence,  to  be  put  in  the  same 
class  with  the  decisions  of  the  great  Chief  Justice  himself.  The 
opinion  of  Mr.  Justice  Story  in  the  case  of  Martin  v.  Hunter  does 
not  seem,  in  the  judgment  of  the  author,  to  be  equal  to  either  of  the 
others.  Certainly,  his  contention  that  the  federal  Constitution  re- 
quired Congress  to  confer  all  the  judicial  power  granted  by  the 
Constitution  upon  some  courts  has  not  been  sustained  by  the  subse- 
quent legal  history  of  our  country,  as  there  are  many  cases  of  federal 
jurisdiction  which  could  have  been  conferred  upon  the  federal  court, 
but  have  not  been. 


191)  REVIEW    OF    STATE    COURT    DECISIONS.  4S3 


SAME— THE  PROCEEDINGS  REVIEWABLE. 

190.  Any  proceeding  which  is  a  snit  in  the  state  court  is  re- 
viewable under  this  provision  of  law,  if  it  involves  any 
of  the  questions  therein  mentioned.  It  is  the  object  of 
the  act  to  protect  federal  constitutional  rights,  and 
whether  they  arise  in  an  ordinary  suit,  or  in  an  ex- 
traordinary proceeding,  like  habeas  corpus  or  manda- 
mus, provided  only  they  are  a  court  proceeding,  they 
are  reviewable.ioo 

It  has  been  seen  in  another  connection  that  there  are  many 
court  proceedings  which  are  yet  not  suits  at  law  or  in  equity, 
in  the  sense  in  which  that  term  is  used  when  discussing  the 
original  jurisdiction  of  the  federal  courts.  That  criterion, 
however,  does  not  apply  to  these  cases  in  the  state  courts,  and 
the  term  is  used  in  a  wider  sense  than  in  discussing  the  char- 
acter of  proceedings  cognizable  in  the  federal  trial  courts.101 

There  is  no  monetary  limit  to  the  right  of  review  in  these\ 
cases,  the  question  itself  being  of  sufficient  importance,  no  mat- 
ter how  small  the  amount  involved ;   and,  as  a  matter  of  fact, 
many  of  the  cases  taken  to  the  Supreme  Court  under  this  pro-/ 
vision  have  involved  very  small  amounts.102 


SAME— THE  COURTS  WHOSE  DECISIONS  ARE 
REVIEWABLE. 

191.    The  language  of  the  act  is,  "The  highest  court  of  a  state 
in   which   a   decision   in    the    suit    could   be    had."     This 
means  the  court  having  final  jurisdiction  over  the  spe-  ,: 
cial  question,  not  necessarily  the  state  court  of  highest 

rank. 

ioo  Hartman  v.  Greenhow,  102  U.  S.  672,  26  L.  Ed.  271;  American 
Exp.  Co.  v.  Michigan,  177  U.  S.  404,  20  Sup.  Ct.  695,  44  L.  Ed.  823 

ioi  Cases  supra. 

io2Buel  v.  Van  Ness,  8  Wheat.  312,  5  L.  Ed.  624;  The  Paquete 
Habana,  175  U.  S.  677,  20  Sup.  Ct.  290,  44  L    Ed.  320. 


484  APrELLATE    JURISDICTION.  (Ch.  21 

It  must,  however,  be  a  decision  of  a  court,  not  merely  an 
order  of  the  judge  at  chambers.108  It  means  the  last  court 
which  could  decide  the  special  question,104  but,  where  an  at- 
tempt is  made  to  review  under  this  provision  the  decision  of 
a  court  which  is  not  the  highest  court  of  the  state,  it  must  be 
shown  that  this  is  the  court  which  has  final  jurisdiction  of  the 
special  question.  If  there  is  a  discretionary  right  of  review 
of  such  a  court  by  a  higher  court,  the  record  must  show  that 
the  party  has  exhausted  his  efforts  to  obtain  the  benefits  of 
such  review  before  he  can  take  the  case  up  from  the  lower  of 
the  two  courts.106  If  an  application,  however,  is  made  to  the 
highest  court  of  a  state  for  the  allowance  of  an  appeal,  and 
that  court  refuses  it,  but  retains  no  copy  of  the  record,  then 
the  decision  should  go  to  the  lower  court,  where  the  record 
remains ;  but  if  the  appellate  court  acts  as  a  court,  and  refuses 
the  appeal,  and  makes  an  entry  of  it  on  its  minutes,  and  re- 
tains a  copy  of  the  record,  then  the  appeal  should  go  to  the 
higher  court.108 

The  writ  of  error  must  go  to  the  highest  state  court,  if  it 
has  jurisdiction  of  the  matter,  even  though,  as  a  matter  of  fact, 
it  is  a  foregone  conclusion  that  it  will  act  adversely,  as  in  cases 
of  second  appeals  or  questions  already  settled.107 

103  McKnight  v.  James,  155  U.  S.  685,  15  Sup.  Ct.  248,  39  L.  Ed. 
310. 

io4  Missouri,  K.  &  T.  R.  Co.  v.  Elliott,  184  U.  S.  530,  22  Sup.  Ct. 
446,  46  L.  Ed.  673. 

io  5.  Gregory  v.  McVeigh,  23  Wall.  294,  23  L.  Ed.  156;  Fisher  v. 
Perkins,  122  U.  S.  522,  7  Sup.  Ct.  1227,  30  L.  Ed.  1192;  Mullen  v. 
Beef  Co.,  173  U.  S.  116,  19  Sup.  Ct.  404,  43  L.  Ed.  635. 

loe  POLLEYS  v.  IMPROVEMENT  CO.,  113  U.  S.  81,  5  Sup.  Ct.  369. 
28  L.  Ed.  938;  Stanley  v.  Schwalby,  162  U.  S.  255,  16  Sup.  Ct. 
754,  40  L.  Ed.  960;  Bacon  v.  Texas,  163  U.  S.  207,  16  Sup.  Ct.  1023, 
41  L.  Ed.  132;  Wedding  v.  Meyler,  192  U.  S.  573,  24  Sup.  Ct.  322,  48 
L.  Ed.  570. 

io?  GREAT  WESTERN  TELEGRAPH  CO.  v.  BURNHAM,  162 
U.  S.  339,  16  Sup.  Ct  850,  40  L.  Ed.  991. 


§  193)  REVIEW    OF    STATE    COURT    DECISIONS.  4SD 


SAME— BY  WHOM  THE  RIGHT  OF  REVIEW  MAY  BE 
INVOKED. 

192.  Only  the  party  actually  injuriously  affected  by  the  ad- 

verse decision  can  claim  such  a  right  of  review,  not 
third  parties  who  would  be  indirectly  interested  in  an 
adverse  decision  of  the  federal  question.108 
Only  a  party  against  whose  federal  claim  the  decision  is 
rendered  can  appeal,  not  one  in  'whose  favor  such  a  de- 
cision is  made.109 

SAME— CHARACTER  OF  QUESTIONS  REVIEWABLE. 

193.  The    only    questions    reviewable    under    this    section    are 

cases  of  conflicting  state  and  federal  rights,  viz.: 

(a)  Cases  where  is  drawn  in  question  the  validity  of  a  treaty 

or  statute  of,  or  an  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  the  validity.     . 

(b)  Cases  where  is  drawn  in  question  the  validity  of  a  statute 

of,  or  an  authority  exercised  under,  any  state,  on  the 
ground  of  their  being  repugnant  to  the  Constitution, 
treaties,  or  laws  of  the  United  States,  and  the  decision 
is  in  favor  of  their  validity. 

(c)  Cases  where   any   title,    right,    privilege,    or  immunity   is 

claimed  under  the  Constitution,  or  any  treaty  or  stat- 
ute of,  or  commission  held  or  authority  exercised  un- 
der, the  United  States,  and  the  decision  is  against  the 
title,  right,  privilege,  or  immunity  specially  set  up  I 
or  claimed  by  either  party  under  such  Constitution,' 
treaty,  statute,  commission,  or  authority. 

It  is  manifest,  under  this  statute,  that  the  character  of  the 
question  decides  the  right  of  review,  and  that  the  citizenship 
of  the  parties  has  nothing  to  do  with  it.110  It  is  equally  mani- 
fest that  the  questions  reviewable  in  this  manner  are  simply 
federal  constitutional  questions — that  is,  conflicts  of  state  and 

los  Tyler  v.  Judges,  179  U.  S.  405,  21  Sup.  Ct.  206,  45  L.  Ed.  252. 
109  Ryan  v.  Thomas,  4  Wall.  603,  18  L.  Ed.  460;    Rutland  R.  Co. 
V.  Railroad  Co.,  159  U.  S.  630,  638,  16  Sup.  Ct.  113,  40  L.  Ed.  284. 
no  French  v.  Hopkins,  124  U.  S.  524,  8  Sup.  Ct.  589,  31  L.  Ed.  536. 


486  APPELLATE   JURISDICTION.  (Ch.  21 

federal  authority — and  that  questions  of  the  conflict  of  a  state 
statute  with  a  state  constitution  do  not  fall  under  any  of  these 
classes.111  Nor  do  mere  questions  of  construction,  either  of 
the  federal  or  state  laws,  come  under  any  of  these  classes, 
where  no  question  of  their  validity  is  involved.112  Nor  are 
questions  of  general  law  thus  reviewable.118  The  questions, 
in  order  to  be  reviewable,  however,  must  be  sufficiently  open 
to  doubt  to  show  that  the  claim  is  bona  fide  and  with  some  color 
of  merit,  and  not  a  bare  assertion  of  an  obviously  unfounded 
one.114 

The  effect  of  a  proceeding  to  review  the  decision  of  the 
state  courts  under  this  section  is  simply  to  bring  up  federal 
questions  of  law.  Even  in  a  chancery  case  only  questions  of 
law  are  reviewable,  for  the  statute  expressly  provides  that  the 
decisions  of  the  state  courts  are  reviewable  only  by  writ  of  er- 
ror, and  it  could  not  have  been  the  intention  to  give  a  general 
review  of  all  questions  of  law  and  fact  involved  in  the  case  so 
taken  up.116 

The  classes  of  questions  reviewable,  as  has  been  seen,  sub- 
divide into  three.  The  first  of  these  is  where  the  validity  of 
a  treaty  or  statute  or  authority  exercised  under  the  United 
States  is  questioned  in  the  state  court ;  but  it  must  be  borne  in 
mind  that  such  a  federal  statute  or  authority  must  be  actually 
drawn  in  question,  and  that  no  review  lies  from  a  mere  deci- 

111  Kipley  v.  Illinois,  170  U.  S.  182,  18  Sup.  Ct.  550,  42  L.  Ed.  998; 
Missouri  v.  Dockery,  191  U.  S.  165,  24  Sup.  Ct.  53,  48  L.  Ed.  133. 

112  Choteau  v.  Marguerite,  12  Pet  507,  9  L.  Ed.  1174;  Cook  Co.  v. 
Dock  Co.,  138  U.  S.  635,  11  Sup.  Ct.  435,  34  L.  Ed.  1110;  Osborne  v. 
Florida,  164  U.  S.  650,  17  Sup.  Ct.  214,  41  L.  Ed.  586. 

us  Grame  v.  Assurance  Co.,  112  U.  S.  273,  5  Sup.  Ct.  150,  28  L.  Ed. 
716. 

ii4  New  Orleans  Waterworks  Co.  v.  Louisiana,  185  U.  S.  336,  22 
Sup.  Ct.  691,  46  L.  Ed.  936;  Wabash  R.  Co.  v.  Flannigan,  192  U.  S. 
29,  24  Sup.  Ct.  224.  48  L.  Ed.  328. 

us  Dower  v.  Richards,  151  U.  S.  658,  14  Sup.  Ct.  452,  38  L.  Ed. 
305;  EGAN  v.  HART,  165  U.  S.  188.  17  Sup.  Ct.  300,  41  L.  Ed.  680; 
Thayer  v.  Spratt,  189  U.  S.  346,  23  Sup.  Ct.  576,  47  L.  Ed.  845. 


§  193)  REVIEW    OF    STATE    COURT    DECISIONS.  487 

sion  of  a  state  court  construing  a  federal  statute.116  Hence 
it  appears  that  there  are  many  federal  questions  upon  which 
the  state  courts  can  pass,  and  over  which  the  federal  courts 
have  no  right  of  review,  such  as  questions  of  mere  construc- 
tion, not  appearing  on  the  face  of  the  plaintiff's  pleading,  in 
which  case,  as  has  been  seen,  no  right  of  removal  exists,  or 
questions  so  appearing  in  cases  involving  less  than  two  thou- 
sand dollars,  or  proceedings  not  amounting  to  suits,  in  which 
cases,  also,  no  right  of  removal  exists. 

The  second  of  these  classes  is  where  a  state  statute  is  ques- 
tioned in  the  state  court  as  repugnant  to  the  federal  Constitu- 
tion or  laws,  and  the  court  sustains  the  state  statute.  This  is 
a  very  common  class  of  jurisdiction.  One  of  the  most  fre- 
quent instances  of  its  exercise  is  where  state  laws  are  alleged 
to  violate  the  constitutional  provisions  against  impairing  the 
obligation  of  contracts — a  provision  applying  not  simply  to 
the  acts  of  the  state  legislature,  but  also  to  the  acts  of  any 
subordinate  legislative  body,  like  a  municipality,  but  not  the 
acts  of  executive  or  judicial  officers.117  Another  instance  is 
the  question  whether  the  taking  of  property  under  a  state 
statute  constitutes  a  taking  for  public  use,  or  deprives  the 
party  of  his  property  without  due  process  of  law.118  The 
third  class,  under  the  statute,  is  where  a  title,  right,  privilege, 
or  immunity  is  claimed  under  the  federal  Constitution  or  laws, 
or  a  commission  or  authority  exercised  under  the  United  States, 
and  the  decision  is  against  the  right  specially  set  up  or  claimed 

lie  Kennard  v.  Nebraska,  186  U.  S.  304,  22  Sup.  Ct.  879,  46  L.  Ed. 
1175. 

ii7  Williams  v.  Louisiana,  103  U.  S.  637,  26  L.  Ed.  595;  Citizens' 
Bank  v.  Parker,  192  U.  S.  73,  24  Sup.  Ct.  181,  48  L.  Ed.  346;  Grand 
Rapids  &  I.  R.  Co.  v.  Osborn,  193  U.  S.  17,  24  Sup.  Ct.  310,  48  L. 
Ed.  598;  New  Orleans  Waterworks  v.  Sugar  Refining  Co.,  125  U.  S. 
18,  8  Sup.  Ct.  741,  31  L.  Ed.  607;  Bacon  v.  Texas,  163  U.  S.  207,  16 
Sup.  Ct.  1023,  41  L.  Ed.  132. 

us  Fallbrook  Irr.  Dist  v.  Bradley,  164  U.  S.  112,  17  Sup.  Ct  56, 
41  L.  Ed.  369. 


488  APPELLATE   JURISDICTION.  (Ch.  21 

by  either  party.  This  also  is  a  very  common  exercise  of  the 
jurisdiction.  It  cannot  be  invoked,  however,  where  both  par- 
ties set  up  title  through  a  common  source  to  the  United 
States.119  It  covers,  however,  not  simply  questions  of  valid- 
ity or  construction  of  the  federal  Constitution  or  laws,  but  also 
authority  exercised  under  the  United  States— in  this  respect 
being  wider  than  the  clause  conferring  jurisdiction  on  the  trial 
courts  of  the  United  States  by  removal,  where  only  questions 
under  the  Constitution  or  laws  give  the  right.120  The  ques- 
tion whether  a  proceeding  in  a  state  court  put  the  accused 
twice  in  jeopardy,  contrary  to  the  provisions  of  the  federal 
Constitution,  raises  such  a  question.121  The  question  as  to  the 
effect  of  a  sale  under  the  bankrupt  law  is  such  a  question.122 
So,  also,  the  question  whether  a  party  is  entitled  to  a  removal 
of  his  case  from  the  state  court  under  the  provisions  of  the 
removal  act.123  So  rights  or  causes  of  action  claimed  under 
the  national  banking  law.124  So,  too,  the  question  whether  a 
carrier  who  pays  duties  on  imports  exacted  under  a  federal 
statute  has  a  lien  against  the  owner  of  the  goods  for  reimburse- 
ment.125 

us  California  v.  Jackson,  112  TJ.  S.  233,  5  Sup.  Ct  113,  28  L  Ed 
712. 

120  Carson  v.  Dunham,  121  U.  S.  421,  427,  7  Sup.  Ct.  1030,  30  L 
Ed.  992. 

121  Bohanan  v.  Nebraska,  118  U.  S.  231,  6  Sup.  Ct.  1049  30  L 
Ed.  71. 

122  Factors'  &  Traders'  Ins.  Co.  v.  Murphy,  111  U.  S.  738,  4  Sup. 
Ct.  679,  28  L.  Ed.  582;  New  Orleans,  S.  F.  &  L.  R.  Co.  v.  Delamore, 
114  U.  S.  501,  5  Sup.  Ct.  1009,  29  L.  Ed.  244. 

123  Oakley  v.  Goodnow,  118  U.  S.  43,  6  Sup.  Ct.  944,  30  L.  Ed.  61; 
SOUTHERN  RY.  CO.  v.  ALLISON,  190  TJ.  S.  326,  23  Sup.  Ct.  713,' 
47  L.  Ed.  1078. 

124  McCormick  v.  Bank,  165  U.  S.  538,  17  Sup.  Ct.  433,  41  L.  Ed. 
817;  Talbot  v.  Bank,  185  U.  S.  172,  22  Sup.  Ct.  612,  46  L.  Ed.  857. 

125  Wabash  R.  Co.  v.  Pearce,  192  U.  S.  179,  24  Sup.  Ct.  231,  48  L 
Ed.  397. 


§  194)  REVIEW    OF    STATE    COURT    DECISIONS.  481) 

SAME— HOW    A    FEDERAL    QUESTION    MUST    BE    RAISED 
OR  SHOWN  BY  THE  RECORD. 

194.  In  order  to  avail  of  the  right  to  review  the  action  of  a 
state  court  on  a  federal  question,  it  must  be  raised  in 
the  state  court  in  the  manner  in  which  a  question  of 
that  nature  should  be  raised  by  the  state  practice,  and 
the  record  must  show  this. 

If,  for  instance,  it  arises  in  connection  with  a  question  of 
evidence,  and  the  party  in  the  state  court  does  not  seasonably 
object  or  take  a  proper  bill  of  exceptions  to  the  action  of  the 
state  court,  where  a  bill  of  exceptions  is  necessary,  and  there- 
fore the  state  Supreme  Court  decides  that  the  question  cannot 
be  considered,  because  not  properly  raised,  the  benefit-  of  the 
question  is  lost.126  It  need  not  necessarily  appear  in  the  plead- 
ings, and  in  fact  there  are  many  questions  which  could  not  be 
made  to  appear  by  the  pleadings,  but  it  must  certainly  appear 
somewhere  in  the  record  that  the  point  was  made  and  insisted 
upon.     On  this  subject  Chief  Justice  Fuller  has  said : 

"As  the  validity  of  no  treaty  or  statute  of,  or  authority 
exercised  under,  the  United  States,  nor  of  a  statute  of,  or  au- 
thority exercised  under,  any  state,  was  drawn  in  question,  it 
is  essential  to  the  maintenance  of  our  jurisdiction  that  it  should 
appear  that  some  title,  right,  privilege,  or  immunity  under  the 
Constitution  or  laws  of  the  United  States  was  specially  set  up 
or  claimed  in  the  state  court,  and  that  the  decision  of  the  high- 
est court  of  the  state  in  which  such  decision  could  be  had 
was  against  the  title,  right,  privilege,  or  immunity  so  set  up 
or  claimed,  and  in  that  regard  certain  propositions  must  be  re- 
garded as  settled : 

"(1)  That  the  certificate  of  the  presiding  judge  of  the  state 
court  as  to  the  existence  of  grounds  upon  which  our  interposi- 

126  Mutual  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  291,  23  Sup.  Ct.  375, 
47  L.  Ed.  480,  63  L.  R.  A.  33. 


490  APPELLATE   JURISDICTION.  (Ch.  21 

tion  might  be  successfully  invoked,  while  always  regarded 
with  respect,  cannot  confer  jurisdiction  upon  this  court  to 
re-examine  the  judgment  below. 

"(2)  That  the  title,  right,  privilege,  or  immunity  must  be 
specially  set  up  or  claimed  at  the  proper  time  and  in  the  proper 
way. 

"(3)  That  such  claim  cannot  be  recognized  as  properly  made 
when  made  for  the  first  time  in  a  petition  for  rehearing  after 
judgment. 

"(4)  That  the  petition  for  the  writ  of  error  forms  no  part 
of  the  record  upon  which  action  is  taken  here. 

"(5)  Nor  do  the  arguments  of  counsel,  though  the  opinions 
of  the  state  courts  are  now  made  such  by  rule. 

"(6)  The  right  on  which  the  party  relies  must  have  been  called 
to  the  attention  of  the  court  in  some  proper  way,  and  the  deci- 
sion of  the  court  must  have  been  against  the  right  claimed. 

"(7)  Or  at  all  events  it  must  appear  from  the  record  by  clear 
and  necessary  intendment  that  the  federal  question  was  directly 
involved,  so  that  the  state  court  could  not  have  given  judg- 
ment without  deciding  it;  that  is,  a  definite  issue  as  to  the 
decision  of  the  right  must  be  distinctly  deducible  by  the  record 
before  the  state  court  can  be  held  to  have  disposed  of  such 
federal  question  by  its  decision."  12T 

The  requirement  as  to  the  record  showing  is  a  little  stronger 
in  the  third  class  of  questions  than  in  the  first  two — due  to  the 
fact  that  in  the  third  class  it  is  required  by  the  language  of  the 
statute  itself  that  the  title,  right,  privilege,  or  immunity  must 
be  specially  set  up  and  claimed.  On  this  point  the  Supreme 
Court  has  said : 

"To  the  argument  that  the  federal  right  was  not  specially 
set  up  and  claimed,  in  the  language  of  Rev  St.  §  709,  it  19 
replied  that  this  is  not  one  of  the  cases  in  which  it  is  necessary 
to  do  so.     Under  this  section  there  are  three  classes  of  cases 

127  SAYWARD  v.  DENNY,  158  U.  S.  180,  15  Sup.  Ct.  777,  39  L. 
Ed.  941. 


§  194)  REVIEW    OF    STATE    COURT    DECISIONS.  491 

in  which  the  final  decree  of  a  state  court  may  be  re-examined 
here: 

"(1)  Where  is  drawn  in  question  the  validity  of  a  treaty  or 
statute  of,  or  authority  exercised  under,  the  United  States, 
and  the  decision  is  against  their  validity. 

"(2)  Where  is  drawn  in  question  the  validity  of  a  statute  of, 
or  an  authority  exercised  under,  any  state,  on  the  ground  of 
their  being  repugnant  to  the  Constitution,  treaties,  or  laws  of 
the  United  States,  and  the  decision  is  in  favor  of  their  validity. 

"(3)  Or  where  any  title,  right,  privilege,  or  immunity  is 
claimed  under  the  Constitution  or  any  treaty  or  statute  of,  or 
commission  held  or  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  the  title,  right,  privilege,  or 
immunity  specially  set  up  and  claimed  by  either  party  under 
such  Constitution,  statute,  commission,  or  authority. 

"There  is  no  doubt  that  under  the  third  class  the  federal 
right,  title,  privilege,  or  immunity  must  be,  with  possibly  some 
rare  exceptions,  specially  set  up  or  claimed,  to  give  this  court 
jurisdiction. 

"But  where  the  validity  of  a  treaty  or  statute  of  the  United 
States  is  raised,  and  the  decision  is  against  it,  or  the  validity 
of  a  state  statute  is  drawn  in  question,  and  the  decision  is  in 
favor  of  its  validity,  this  court  has  repeatedly  held  that  if  the 
federal  question  appears  in  the  record,  and  was  decided,  or 
such  decision  was  necessarily  involved  in  the  case,  and  the 
case  could  not  have  been  determined  without  deciding  such 
question,  the  fact  that  it  was  not  specially  set  up  and  claimed 
is  not  conclusive  against  the  review  of  such  question  here."  128 

The  question  must  be  raised  before  a  judgment  in  the  state 
court,  and  if  of  the  third  class,  must,  as  has  been  seen,  be  spe- 
cially set  up.129     It  may  be  raised  by  a  motion  for  a  new  trial 

i2«  Columbia  Water  Power  Co.  v.  Power  Co.,  172  U.  S.  475,  19 
Sup.  Ct.  247,  43  L.  Ed.  521. 

129  Yazoo  &  M.  R.  Co.  v.  Adams,  180  U.  S.  1,  21  Sup.  Ct.  240,  45 
L.  Ed.  395;  Turner  v.  Richardson,  180  U.  S.  87,  21  Sup.  Ct  295,  45 
L.  Ed.  438. 


492  APPELLATE   JURISDICTION.  (Cll.  21 

and  assignment  of  errors  in  the  state  court,  if  that  is  not  too 
late  under  the  state  practice,  especially  if  the  opinion  of  the 
state  court  shows  that  the  question  was  passed  upon.130  It 
cannot,  however,  be  raised  for  the  first  time  in  the  assignment 
of  errors  and  petition  for  a  writ  of  error  in  the  United  States 
Supreme  Court.131  It  cannot  be  raised  for  the  first  time  by 
a  petition  for  rehearing  in  the  state  appellate  court  if  the  peti- 
tion is  refused,  but  if  the  state  court  grants  the  petition  for 
rehearing,  and  considers  the  question,  then  it  is  properly  in 
the  record  for  the  purposes  of  review  by  the  United  States 
Supreme  Court.132  It  must  appear  from  the  record,  however, 
that  the  case  in  the  state  court  turned  on  the  federal  question, 
and  that  it  must  have  been  passed  upon,  not  merely  that  it 
might  have  been.138  If  the  record  shows  that  the  federal 
question  was  necessarily  involved,  so  that  a  decision  could 
not  have  been  rendered  without  passing  upon  it,  then  it  is 
sufficiently  involved  for  the  purposes  of  a  review  by  the  United 
States  Supreme  Court,  even  though  the  opinion  of  the  state 
court  does  not  show  that  it  was  passed  upon,  or  though  the 
state  court  failed  to  make  an  express  ruling  upon  it.134 

180  Rothschild  v.  Knight,  184  U.  S.  334,  22  Sup.  Ct.  391,  46  L.  Ed. 
573;  San  Jose  Land  &  Water  Co.  v.  Ranch  Co.,  189  U.  S.  177,  23 
Sup.  Ct.  487,  47  L.  Ed.  765;  Farmers'  &  Merchants'  Ins.  Co.  v.  Dob- 
ney,  189  U.  S.  301,  23  Sup.  Ct.  565,  47  L.  Ed.  821. 

i3i  Jacobi  v.  Alabama,  187  U.  S.  133,  23  Sup.  Ct.  48,  47  L.  Ed.  106; 
Johnson  v.  Insurance  Co.,  187  U.  S.  491,  23  Sup.  Ct.  194,  47  L.  Ed. 
273. 

182  Mallett  v.  North  Carolina,  181  U.  S.  589,  21  Sup.  Ct.  730,  45  L. 
Ed.  1015;  Mutual  Life  Ins.  Co.  v.  McGrew,  188  TJ.  S.  291,  23  Sup. 
Ct.  375.  47  L.  Ed.  480,  63  L.  R.  A.  33;  Leigh  v.  Green,  193  U.  S.  79, 
24  Sup.  Ct.  390,  48  L.  Ed.  623. 

133  Detroit  City  Ry.  Co.  v.  Guthard,  114  U.  S.  136,  5  Sup.  Ct.  811, 
29  L.  Ed.  118;  New  York  Cent.  &  H.  R.  R.  Co.  v.  New  York,  186  U. 
S.  269,  22  Sup.  Ct.  916,  46  L.  Ed.  1158. 

is*  Chicago  Life  Ins.  Co.  v.  Needles,  113  U.  S.  574,  5  Sup.  Ct.  681, 
28  L.  Ed.  1084 ;  Arrowsmith  v.  Harmoning,  118  U.  S.  194,  6  Sup.  Ct. 
1023,  30  L.  Ed.  243;  Erie  R.  Co.  v.  Purdy,  185  U.  S.  148,  22  Sup.  Ct. 
605,  46  L.  Ed.  847. 


§  194)  REVIEW    OF    STATE    COURT    DECISIONS.  493 

Where  there  is  no  opinion  filed  by  the  state  court,  the  cer- 
tificate of  the  court  that  a  federal  question  was  passed  upon 
will  be  considered  by  the  Supreme  Court  in  deciding  whether 
such  a  question  was  involved.135 

It  is  frequently  the  case  that  the  record  in  a  state  court  shows 
not  only  federal  questions,  but  nonfederal  questions  as  well. 
If,  under  these  circumstances,  the  decision  of  the  state  court 
on  the  nonfederal  question  is  sufficient  to  dispose  of  the  case 
without  taking  the  federal  question  into  consideration  at  all, 
then  no  right  of  review  of  the  case  exists  in  the  United  States 
Supreme  Court,  and  it  will  dismiss  a  writ  of  error  taken  in 
such  a  case.136  The  Supreme  Court  in  such  a  review  has 
jurisdiction,  although  it  may  turn  out,  as  the  final  result,  that 
the  federal  question  claimed  was  not  legally  sustainable,  for 
it  must  have  jurisdiction  to  consider  at  least  the  question 
whether  it  is  sustainable  or  not.137 

It  appears  from  the  discussion  of  the  various  classes  of  fed- 
eral jurisdiction  heretofore  considered  that  there  are  three  im- 
portant contingencies  under  which  a  federal  question  can  come 
before  the  federal  courts  for  decision,  and  slightly  different 
principles  regulate  each  one  of  these  cases.  The  first  is  in 
connection  with  the  original  jurisdiction  of  the  federal  trial 
courts,  whether  in  actions  originally  instituted  in  them,  or  ac- 
tions taken  to  them  by  removal.  In  these  cases  a  federal 
question  may  arise  not  simply  in  connection  with  the  federal 
Constitution,  as  affecting  the  validity  of  a  state  or  federal  law, 
but  also  in  connection  with  the  construction  of  both  the  federal 
Constitution,  laws,  and  treaties.     Whenever  under  them  the 

135  Gulf  &  S.  I.  R.  Co.  v.  Hewes,  183  U.  S.  66,  22  Sup.  Ct.  26,  46 
L.  Ed.  86. 

136  Murdock  v.  Memphis,  20  Wall.  636,  22  L.  Ed.  429;  EUSTIS  v. 
BOLLES,  150  U.  S.  361,  14  Sup.  Ct.  131,  37  L.  Ed.  1111;  Rutland  R. 
Co.  v.  Railroad  Co.,  159  U.  S.  630,  16  Sup.  Ct.  113,  40  L.  Ed.  284; 
Giles  v.  Teasley,  193  U.  S.  146,  24  Sup.  Ct.  359,  48  L.  Ed.  655. 

is?  Chicago  Life  Ins.  Co.  v.  Needles,  113  TJ.  S.  574,  5  Sup.  Ct.  681, 
28  L.  Ed.  1084;  Blythe  v.  Hinckley,  180  U.  S.  333,  21  Sup.  Ct.  390, 
45  L.  Ed.  557. 


494  APPELLATE    JURISDICTION.  (Cll.  21 

right  of  recovery  hinges  upon  the  construction  or  application 
of  the  federal  Constitution,  laws,  or  treaties,  such  a  question 
is  involved,  and  the  original  jurisdiction  of  the  federal  court 
vests,  provided  the  fact  that  such  a  question  is  involved  appears 
upon  the  plaintiff's  pleadings.  In  this  connection,  therefore, 
the  term  "federal  question"  is  used  in  its  widest  sense.138 

The  second  class  of  cases  in  which  federal  questions  may 
arise  is  in  connection  with  the  right  of  appeal  from  the  federal 
courts  of  original  jurisdiction  direct  to  the  Supreme  Court. 
This  class  of  questions,  however,  are  federal  constitutional 
questions,  not  mere  questions  of  the  construction  or  application 
of  a  federal  law.  They  may  arise,  however,  not  only  when 
the  plaintiff's  pleadings  show  such  a  question  to  be  involved, 
but  also  when  set  up  as  a  defense  in  the  case,  and  they  may 
arise  in  this  connection  whether  the  decision  is  in  favor  of  or 
against  the  constitutional  right  asserted.139 

The  last  class  of  cases  is  the  one  which  has  just  been  dis- 
cussed in  connection  with  the  right  of  review  of  the  state 
court's  decisions  by  the  Supreme  Court.  In  this  class  of  cases 
the  question  need  not  necessarily  arise  by  the  plaintiff's  plead- 
ings, but  may  arise  in  subsequent  stages  of  the  cause.  The 
court,  however,  only  has  jurisdiction  in  such  case  where  the 
decision  is  against  the  constitutional  question  asserted,  and  the 
questions  involved  are  solely  federal  constitutional  questions, 
and  not  questions  of  mere  construction.  In  this  sense,  there- 
fore, the  term  "federal  question"  has  its  narrowest  meaning. 

138  Ante,  p.  203.  «•  Ante,  p.  430. 


§  195)       PROCEDURE  ON  ERROR  AND  APPEAL.         495 

CHAPTER  XXTT. 

PROCEDURE  ON  ERROR  AND  APPEAL. 

195.  Review  by  the  Supreme  Court. 

196.  Same — Writ  of  Error. 

197.  Same — Appeal. 

198.  Same— Other  Methods. 

199.  Review  by  the  Circuit  Court  of  Appeals. 

200.  Trial  iu  the  Appellate  Courts. 

REVIEW  BY  THE  SUPREME  COURT. 

195.  Review  by  the  Supreme  Court  of  decisions  in  the  cases 
over  which  it  exercises  appellate  jurisdiction  is  had  by 
means  of  writ  of  error  or  appeal,  and  by  certain  other 
methods  provided  by  statute  in  certain  cases. 
Only  final  judgments  or  decrees  can  be  made  the  subject  of 
review  by  writ  of  error  or  appeal. 

It  has  been  seen  by  the  previous  discussion  that  the  appel- 
late courts  of  the  United  States  of  general  interest  are  the  Su- 
preme Court  and  the  circuit  courts  of  appeals,  and  the  jurisdic- 
tion respectively  vested  in  them  has  been  discussed  in  the  two 
preceding  chapters.  It  is  now  necessary  to  consider  the  method 
of  invoking  that  jurisdiction,  and  bringing  and  trying  cases 
before  them. 

The  Supreme  Court. 

The  courts  to  which  the  right  of  review  of  the  Supreme 
Court  extends  are,  in  the  first  place,  the  district  and  circuit 
courts.  The  time  of  taking  an  appeal  from  these  courts  is  pre- 
scribed by  section  1008  of  the  Revised  Statutes.1  It  must  be 
within  two  years  after  the  entry  of  the  judgment,  decree,  or 
order  which  it  is  desired  to  review. 

It  is  not  every  decree  or  order  which  can  be  made  the 

i  U.  S.  Comp.  St.  1901,  p.  715. 


496  PROCEDURE  ON  ERROR  AND  APPEAL.      (Cll.  '2'2 

subject  of  review.  Were  this  not  so,  there  might  be  an  endless 
number  of  appeals  in  any  one  case;  and  hence  it  is  a  funda- 
mental principle  of  appellate  proceedings,  subject  to  but  few- 
exceptions,  to  be  hereafter  named,  that  only  final  judgments  or 
decrees  can  be  made  the  subject  of  appellate  review.  Thus  the 
case  is  finally  ended  in  the  lower  court,  and  the  process  of  re- 
view brings  before  the  appellate  court,  once  and  for  all,  the 
entire  case.  The  question  what  constitutes  a  final  judgment  is 
a  matter  of  little  difficulty  in  a  common-law  proceeding.  It  is 
a  matter  of  great  difficulty  in  an  equity  proceeding.  The  flex- 
ible character  of  equity  causes  and  the  infinite  variety  of  equity 
decrees  render  it  difficult  to  define  exactly  what  constitutes  a 
final  decree  or  order  in  any  equity  case.  The  general  principle 
is  that  a  decree  is  final  if  it  settles  the  principles  of  the  cause, 
and  leaves  only  ministerial  acts  by  which  its  decision  is  to  be 
carried  out;  but,  although  it  may  settle  the  main  issue  in  a 
cause,  it  is  not  final  if  anything  is  left  to  the  lower  court  in- 
volving the  exercise  of  judicial  power,  rather  than  ministerial. 
On  this  subject  the  Supreme  Court  has  said : 

"Probably  no  question  of  equity  practice  has  been  the  subject 
of  more  frequent  discussion  in  this  court  than  the  finality  of 
decrees.  It  has  usually  arisen  upon  appeals  taken  from  the 
decrees  claimed  to  be  interlocutory,  but  it  has  occasionally  hap- 
pened that  the  power  of  a  court  to  set  aside  such  a  decree  at  a 
subsequent  term  has  been  the  subject  of  dispute.  The  cases, 
it  must  be  conceded,  are  not  altogether  harmonious.  Upon  one 
hand,  it  is  clear  that  a  decree  is  final,  though  the  case  be  re- 
ferred to  a  master  to  execute  the  decree  by  a  sale  of  property 
or  otherwise,  as  in  the  case  of  the  foreclosure  of  a  mortgage. 
If,  however,  the  decree  of  foreclosure  and  sale  leaves  the  amount 
due  upon  the  debt  to  be  determined,  and  the  property  to  be  sold 
ascertained  and  defined,  it  is  not  final.  A  like  result  follows  if 
it  merely  determines  the  validity  of  the  mortgage,  and,  without 
ordering  sale,  directs  the  case  to  stand  continued  for  further 
decree  upon  the  coming  in  of  the  master's  report. 

"It  is  equally  well  settled  that  a  decree  in  admiralty  deter- 


§  196)  REVIEW    BY    SUPREME    COURT.  497 

mining-  the  question  of  liability  for  a  collision  or  other  tort,  or 
in  equity  establishing  the  validity  of  a  patent,  and  referring 
the  case  to  a  master  to  compute  and  report  the  damages,  is 
interlocutory  merely. 

"It  may  be  said,  in  general,  that  if  the  court  make  a  decree 
fixing  the  rights  and  liabilities  of  the  parties,  and  thereupon  re- 
fer the  case  to  a  master  for  a  ministerial  purpose  only,  and  no 
further  proceedings  in  court  are  contemplated,  the  decree  is 
final;  but  if  it  refer  the  case  to  him  as  a  subordinate  court, 
and  for  a  judicial  purpose,  as  to  state  an  account  between  the 
parties,  upon  which  a  further  decree  is  to  be  entered,  the 
decree  is  not  final.  But  even  if  an  account  be  ordered  taken,  if 
such  accounting  be  not  asked  for  in  the  bill,  and  be  ordered 
simply  in  execution  of  the  decree,  and  such  decree  be  final  as 
to  all  matters  within  the  pleadings,  it  will  still  be  regarded  as 
final."  2 

Even  if  the  appeal  from  the  district  or  circuit  court  is  on  a 
jurisdictional  question  only,  and  by  certificate,  it  can  still  be 
taken  only  after  a  final  decree  is  entered  in  the  cause.8 


SAME— WRIT  OF  ERROR. 

196.  The  review  is  by  writ  of  error  in  cases  of  a  common-law 
nature,  civil  or  criminal,  which  are  triable  by  a  jury. 

By  this  method,  only  errors  of  law  which  have  been  embodied 
in  the  record  in  the  manner  usual  in  common-law  cases 
can  be  reviewed. 

The  writ  of  error  is  a  writ  of  the  appellate  court  to  the  trial 
court  for  the  purpose  of  bringing  up  the  record  for  re- 
view. 

2  McGOURKEY  v.  RAILWAY,  146  U.  S.  536,  13  Sup.  Ct.  170,  36 
L.  Ed.  1079.  See,  also,  Keystone  Manganese  &  Iron  Co.  v.  Martin, 
132  U.  S.  91,  10  Sup.  Ct.  32,  33  L.  Ed.  275;  Guarantee  Co.  v.  Trust 
Co.,  173  U.  S.  582,  19  Sup.  Ct.  551,  43  L.  Ed.  818. 

»Bardes  v.  Bank,  175  U.  S.  526,  20  Sup.  Ct.  196,  44  L.  Ed.  261; 
Bowker  v.  U.  S.,  186  U.  S.  135,  22  Sup.  Ct.  802,  46  L.  Ed.  1090. 
Hughes  Fed.Jur. — 32 


498  PROCEDURE    ON    ERROR    AND    APPEAL.  (Ch.  22 

Notice  of  appeal  or  the  issuance  of  a  writ  of  error  is  given  to 

the  parties  by  citation. 
Bond  satisfactory  to  the  jndge  issuing  the  writ  or  allowing 

the  appeal  must  be  given  as  a  condition  of  the  appeal. 

The  seventh  amendment  of  the  federal  Constitution  pro- 
vides : 

"In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served, and  no  fact  tried  by  a  jury  shall  be  otherwise  re- 
examined in  any  court  in  the  United  States,  than  according  to 
the  rules  of  the  common  law." 

Pursuant  to  this  constitutional  provision,  section  1011  of  the 
Revised  Statutes  4  provides : 

"There  shall  be  no  reversal  in  the  Supreme  Court  or  in  the 
circuit  court  upon  a  writ  of  error,  for  error  in  ruling  any  plea 
in  abatement,  other  than  a  plea  to  the  jurisdiction  of  the  court, 
or  for  any  error  in  fact." 

Under  these  provisions,  the  writ  of  error  performs  the 
office  of  bringing  up  for  review  simply  questions  of  law  in  cas- 
es of  common-law  nature  which  are  triable  by  a  jury.  The 
question  what  cases  are  covered  by  this  constitutional  amend- 
ment has  been  discussed  at  length  and  learnedly  by  Mr.  Justice 
Gray  in  a  recent  decision  of  the  Supreme  Court.    He  says : 

"It  must  therefore  be  taken  as  established,  by  virtue  of  the 
seventh  amendment  of  the  Constitution,  that  either  party  to  an 
action  at  law  (as  distinguished  from  suits  in  equity  or  in  ad- 
miralty) in  a  court  of  the  United  States,  where  the  value  in 
controversy  exceeds  twenty  dollars,  has  the  right  to  a  trial 
by  jury ;  that,  when  a  trial  by  jury  has  been  had  in  an  action 
at  law  in  a  court  either  of  the  United  States  or  of  a  state,  the 
facts  there  tried  and  decided  cannot  be  re-examined  in  any 
court  of  the  United  States  otherwise  than  according  to  the  rules 
of  the  common  law  of  England ;  that,  by  the  rules  of  that  law, 
no  other  mode  of  re-examination  is  allowed  than  upon  a  new 

*  U.  S.  Comp.  St.  1901,  p.  715. 


§  196)  REVIEW    BY    SUPREME    COURT.  499 

trial,  either  granted  by  the  court  in  which  the  first  trial  was 
had,  or  to  which  the  record  was  returnable,  or  ordered  by  any 
appellate  court  for  error  in  law;  and  therefore  that,  unless  a 
new  trial  has  been  granted  in  one  of  these  two  ways,  facts  once 
tried  by  a  jury  cannot  be  tried  anew,  by  a  jury  or  otherwise, 
in  any  court  of  the  United  States.    *    *    * 

"Trial  by  jury,  in  the  primary  and  usual  sense  of  the  term 
at  the  common  law  and  in  the  American  Constitutions,  is  not 
merely  a  trial  by  a  jury  of  twelve  men  before  an  officer  vested 
with  authority  to  cause  them  to  be  summoned  and  impaneled, 
to  administer  oaths  to  them  and  to  the  constable  in  charge,  and 
to  enter  judgment  and  issue  execution  on  their  verdict;  but  it 
is  a  trial  by  a  jury  of  twelve  men  in  the  presence  and  under 
the  superintendence  of  a  judge  empowered  to  instruct  them  on 
the  law  and  to  advise  them  on  the  facts,  and  (except  on  acquit- 
tal of  a  criminal  charge)  to  set  aside  their  verdict  if,  in  his 
opinion,  it  is  against  the  law  or  the  evidence."  5 

The  questions  of  law  which  can  be  examined  on  writ  of  error 
are  simply  those  which  appear  by  the  record  in  a  common- 
law  case  to  have  been  raised  and  passed  upon  by  the  lower 
court,  or  to  have  been  essential  to  its  decision.  The  record  in 
a  common-law  case  is  very  different  from  that  in  an  equity 
or  admiralty  case.  It  contains  only  the  pleadings  and  orders  of 
court,  but  not  the  evidence  or  the  instructions,  unless  they  have 
been  made  part  of  the  record  by  a  bill  of  exceptions.  Hence 
on  writ  of  error  only  errors  of  law  can  be  considered  which 
have  been  embodied  in  the  record  in  the  manner  usual  in  com- 
mon-law cases.8  This  same  principle  applies  to  common-law 
cases  tried  and  determined  by  the  court  after  a  jury  has  been 
waived  by  the  parties.  There,  too,  according  to  the  provisions 
of  section  700  of  the  Revised  Statutes,7  only  those  rulings  of 

s  CAPITAL  TRACTION  CO.  v.  HOF,  174  U.  S.  1,  13,  19  Sup.  Ct. 
580,  43  L.  Ed.  873. 

«  St.  Clair  v.  U.  S.,  154  U.  S.  134,  14  Sup.  Ct  1002,  38  L.  Ed.  936. 
i  U.  S.  Conip.  St.  1901,  p.  570. 


500  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

the  court  in  the  progress  of  the  cause  which  are  duly  excepted 
to  and  presented  by  a  bill  of  exceptions  can  be  reviewed.8 

Form  and  Method  of  Issue  of  Writ  of  Error. 

Section  1004  of  the  Revised  Statutes  9  provides  as  follows : 

"Writs  of  error  returnable  to  the  Supreme  Court  may  be  is- 
sued as  well  by  the  clerks  of  the  circuit  courts  under  the 
seals  thereof,  as  by  the  clerk  of  the  Supreme  Court.  When 
so  issued  they  shall  be,  as  nearly  as  each  case  may  admit, 
agreeable  to  the  form  of  a  writ  of  error  transmitted  to  the  clerks 
of  the  several  circuit  courts  by  the  clerk  of  the  Supreme  Court, 
in  pursuance  of  section  9  of  the  act  of  May  8,  1792,  chapter 
36.    *    *    *" 

This  writ  is  the  formal  method  of  transferring  the  record 
from  the  inferior  to  the  appellate  court  for  purposes  of  re- 
view. Although  most  frequently  issued  by  the  clerk  of  the 
circuit  court,  it  is  the  writ  and  process  of  the  Supreme  Court 
commanding  the  lower  court  to  send  up  to  it  for  review  the  rec- 
ord made  up  as  necessary  for  that  purpose.  Hence  the  orig- 
inal writ  should  be  returned  to  the  Supreme  Court,  whose  pro- 
cess it  is.    On  this  subject  Mr.  Justice  Miller  says: 

"We  are  of  opinion  that  the  original  writ  should  always  be 
returned  to  this  court  with  the  transcript  of  the  record.  The 
writ  of  error  is  the  writ  of  this  court,  and  not  of  the  circuit 
court,  whose  clerk  may  actually  issue  it.  The  early  practice 
was  that  it  could  only  issue  from  the  office  of  the  clerk  of  the 
Supreme  Court,  and  in  the  case  of  West  v.  Barnes,  at  the 
August  term,  1791,  it  was  so  decided.  This  decision  led  to  the 
enactment  of  the  ninth  section  of  the  act  of  1792,  by  which  it 
was  provided  that  the  clerk  of  the  Supreme  Court,  assisted  by 
any  two  justices  of  said  court,  should  prescribe  the  form  of  a 
writ  of  error,  copies  of  which  should  be  forwarded  to  the 

s  Norris  v.  Jackson,  9  Wall.  125,  19  L.  Ed.  608;  Mercantile  Mut. 
Ins.  Co.  v.  Folsom,  18  Wall.  249,  21  L.  Ed.  827;  Town  of  Martinton 
v.  Fairbanks,  112  U.  S.  674,  5  Sup.  Ct.  321,  28  L.  Ed.  862;  Wilson  v. 
Trust  Co.,  183  U.  S.  121,  22  Sup.  Ct.  55,  46  L.  Ed.  113. 

»  TJ.  S.  Comp.  St.  1901,  p.  713. 


§  196)  REVIEW    BY    SUPREME    COURT.  501 

clerks  of  the  circuit  courts,  and  that  such  writs  might  be  issued 
by  these  clerks,  under  the  seals  of  their  respective  courts. 
The  form  of  the  writ  provided  under  this  act  has  been  in  use 
ever  since.  It  runs  in  the  name  of  the  President,  and  bears  the 
teste  of  the  chief  justice  of  this  court.  It  is,  in  form  and  in 
fact,  the  process  of  this  court,  directed  to  the  judges  of  the  cir- 
cuit court,  commanding  them  to  return  with  said  writ,  into  this 
court,  a  transcript  of  the  record  of  the  case  mentioned  in  the 
writ. 

"When  deposited  with  the  clerk  of  the  court  to  whose 
judges  it  is  directed,  it  is  served;  and  the  transcript  which 
the  clerk  sends  here  is  a  return  to  the  writ,  and  should  be  ac- 
companied by  it."  10 

It  is  not  essential  that  a  writ  of  error  should  be  allowed  by 
any  judge  in  appeals  from  one  federal  court  to  another,  for  such 
appeals  are  matters  of  right.11  The  practice,  however,  has  al- 
ways been  to  have  a  writ  of  error  allowed  by  a  judge,  and  this 
practice  is  recognized  by  rule  36*  of  the  Supreme  Court,  which 
provides : 

"An  appeal  or  a  writ  of  error  from  a  circuit  court  or  a  dis- 
trict court  direct  to  this  court,  in  the  cases  provided  for  in  sec- 
tions 5  and  6  of  the  act  entitled  'An  act  to  establish  circuit 
courts  of  appeals  and  to  define  and  regulate  in  certain  cases  the 
jurisdiction  of  the  courts  of  the  United  States,  and  for  other 
purposes,'  approved  March  3,  1891,  may  be  allowed,  in  term 
time  or  in  vacation,  by  any  justice  of  this  court,  or  by  any  cir- 
cuit judge  within  his  circuit,  or  by  any  district  judge  within 
his  district,  and  the  proper  security  be  taken  and  the  citations 
signed  by  him,  and  he  may  also  grant  a  supersedeas  and  stay  of 
execution  or  of  proceeding  pending  such  writ  of  error  or 
appeal." 

10  MUSSINA  v.  CAVAZOS,  6  Wall.  355,  18  L.  Ed.  810.  See,  also, 
Brown  v.  McConnell,  124  U.  S.  489,  490,  491,  8  Sup.  Ct.  559,  31  L. 
Ed.  495. 

ii  Davidson  v.  Lanier,  4  Wall.  447.  18  L.  Ed.  377;  BARTEMEYER 
v.  TOWA.  14  Wall.  26,  20  L.  Ed.  792. 

*11  Snp.  Ct.  iv. 


502  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

The  form  of  the  writ  of  error  in  use,  and  of  the  citation  ac- 
companying the  same,  can  be  seen  in  the  case  of  Worcester 
v.  Georgia.12 

The  Return  of  the  Writ  of  Error  and  the  Papers  Accompany- 
ing It. 

Section  997  of  the  Revised  Statutes  18  provides  as  follows: 

"There  shall  be  annexed  to  a  return  with  any  writ  of  error 
for  the  removal  of  a  cause,  at  the  day  and  place  therein  men- 
tioned, an  authenticated  transcript  of  the  record,  an  assign- 
ment of  errors,  and  a  prayer  for  reversal,  with  a  citation  to  the 
adverse  party." 

The  transcript  of  the  record  is  regulated  by  Supreme  Court 
rule  8,f  which  provides: 

"The  clerk  of  the  court  to  which  any  writ  of  error  may  be  di- 
rected shall  make  return  of  the  same  by  transmitting  a  true  copy 
of  the  record,  and  of  the  assignment  of  errors,  and  of  all 
proceedings  in  the  case  under  his  hand  and  the  seal  of  the 
court. 

"In  all  cases  brought  to  this  court  by  writ  of  error  or  appeal, 
to  review  any  judgment  or  decree,  the  clerk  of  the  court  by 
which  such  judgment  or  decree  was  rendered  shall  annex  to 
and  transmit  with  the  record  a  copy  of  the  opinion  or  opinions 
filed  in  the  case." 

This  certificate  to  the  record  is  signed  by  the  clerk,  and  need 
not  be  signed  by  the  judge.14 

The  assignment  of  errors  is  a  very  important  part  of  the  ap- 
pellate papers.  Although  expressly  required  by  statute,  the 
failure  to  annex  an  assignment  of  errors  is  not  fatal  to  the  juris- 
diction. The  thirty-fifth  rule  %  of  the  Supreme  Court  pro- 
vides as  follows : 

"Where  an  appeal  or  writ  of  error  is  taken  from  a  district 

12  6  Pet.  531,  532,  8  L.  Ed.  483. 

i3  U.  S.  Comp.  St.  1901,  p.  712. 

t3  Sup.  Ct.  vii. 

14  Worcester  v.  Georgia,  6  ret.  515,  8  L.  Ed.  483. 

til  Sup.  Ct.  iii. 


§  196)  REVIEW    BY    SUPREME    COURT.  503 

or  a  circuit  court  direct  to  this  court,  under  section  5  of  the 
act  entitled  'An,  act  to  establish  circuit  courts  of  appeals  and  to 
define  and  regulate  in  certain  cases  the  jurisdiction  of  the 
courts  of  the  United  States,  and  for  other  purposes,'  approved 
March  3,  1891,  the  plaintiff  in  error  or  appellant  shall  file  with 
the  clerk  of  the  court  below,  with  his  petition  for  the  writ  of 
error  and  appeal,  an  assignment  of  errors  which  shall  set  out 
separately  and  particularly  each  error  asserted  and  intended  to 
be  urged.  No  writ  of  error  or  appeal  shall  be  allowed  until 
such  assignment  of  errors  shall  have  been  filed.  When  the 
error  alleged  is  to  the  admission  or  rejection  of  evidence,  the 
assignment  of  errors  shall  quote  the  full  substance  of  the  evi- 
dence admitted  or  rejected.  When  the  error  alleged  is  to  the 
charge  of  the  court,  the  assignment  of  errors  shall  set  out  the 
part  referred  to,  totidem  verbis,  whether  it  be  in  instructions 
given,  or  in  instructions  refused.  Such  assignment  of  errors 
shall  form  part  of  the  transcript  of  the  record,  and  be  printed 
with  it.  When  this  is  not  done  counsel  will  not  be  heard  ex- 
cept at  the  request  of  the  court,  and  errors  not  assigned  ac- 
cording to  this  rule  will  be  disregarded,  but  the  court,  at  its 
option,  may  notice  a  plain  error  not  assigned." 

In  pursuance  of  the  same  policy,  the  twenty-first  rule  of 
the  Supreme  Court  requires  the  counsel  for  the  plaintiff  in  er- 
ror or  appellant  to  embody  in  his  brief  a  specification  of  the 
errors  relied  on  practically  in  the  form  of  an  assignment  of  er- 
rors. Under  these  provisions,  the  failure  to  annex  the  assign- 
ment of  errors  to  the  transcript  itself  is  not  fatal  to  the  juris- 
diction, as  above  stated.15 

But  if  there  is  no  assignment  of  errors  in  the  record,  and  no 
proper  specification  in  the  brief,  the  appellate  court  will  dismiss 
the  case,  as  it  is  entitled  to  some  assistance  from  counsel  in 
winnowing  out  from  a  large  record  the  pivotal  questions.16 

is  School  District  of  Ackley  v.  Hall,  106  U.  S.  428,  1  Sup.  Ct.  417, 
27  L.  Ed.  237;  U.  S.  v.  Pena,  175  U.  S.  500,  20  Sup.  Ct.  165,  44  L. 
Ed.  251. 

16  Benites  v.  Hampton,  123  U.  S.  519.  8  Sup.  Ct.  254,  31  L.  Ed.  260. 


504  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

It  is  customary  to  file  a  short  petition  for  the  writ  of  error 
with  the  assignment  of  errors,  and  to  insert  in  it  the  prayer 
for  reversal,  but  it  is  not  essential,  and  almost  any  language  at 
all  similar  would  be  construed  as  a  prayer  for  reversal.17 

The  Citation. 

It  is  obvious  from  the  above  that  the  writ  of  error  is  not  a 
process  intended  for  the  parties  to  the  cause  at  all.  It  is  in- 
tended for  the  lower  court,  and  is  a  method  of  directing  that 
court  to  send  up  to  the  appellate  court  the  proper  record.  But 
it  is  essential  that  the  parties  to  the  cause  should  also  have  no- 
tice when  it  is  intended  to  take  a  case  to  an  appellate  court 
for  review.  This  is  accomplished  by  the  citation,  which,  as 
seen  above,  must  also  be  annexed  to  the  record,  and  service 
of  it  upon  the  opposite  party  is  necessary  unless  waived.  The 
provision  for  the  citation  is  contained  in  section  999  of  the 
Revised  Statutes,18  the  conclusion  of  which  is  as  follows : 
"When  the  writ  is  issued  by  the  Supreme  Court  to  a  circuit 
court,  the  citation  shall  be  signed  by  a  judge  of  such  circuit 
court,  or  by  a  justice  of  the  Supreme  Court,  and  the  adverse 
party  shall  have  at  least  thirty  days'  notice.     *     *     *  " 

This  is  also  provided  by  Supreme  Court  rule  36,  already 
quoted. 

This  paper  must  be  signed  by  the  judge,  not  by  the  clerk, 
being  different  in  this  respect  from  the  writ  of  error.19  It  may 
be  served  upon  the  party  or  upon  his  attorney  of  record.20  A 
citation,  however,  is  nothing  but  an  ordinary  process,  giving 
a  party  notice  of  a  new  court  proceeding,  and  therefore  the  or- 
dinary rules  as  to  the  service  of  process  apply  to  it.  A  general 
appearance  of  the  party  is  a  waiver  of  any  defects  in  form 
or  service.21     It  cannot  be  served  by  mailing  it  in  the  post 

it  MUSSINA  v.  CAVAZOS,  6  Wall.  355,  18  L.  Ed.  810. 
is  U.  S.  Conip.  St.  1901,  p.  712. 

io  Chaffee  v.  Hay  ward,  20  How.  208,  15  L.  Ed.  S51. 
20  Bigler  v.  Waller,  12  Wall.  142,  20  L.  Ed.  260. 
2i  Chaffee  v.  Hayward,  20  How.  208,  15  L.  Ed.  851;    Aldrich  t. 
Insurance  Co.,  8  Wall.  491,  19  L.  Ed.  473. 


§  196)  REVIEW    BY    SUPREME    COURT.  505 

office,  directed  to  the  opposite  party  or  his  attorney.22  In  a 
common-law  case  taken  up  by  writ  of  error,  the  taking  of  an 
appeal  in  open  court  is  not  a  waiver  of  the  necessity  for  a  cita- 
tion. This  is  because  a  writ  of  error  is  not  the  act  of  the 
party,  but  the  act  of  the  court,  and  differs  in  this  respect  from 
an  appeal,  in  which  case,  as  will  be  seen,  the  taking  and  perfect- 
ing of  an  appeal  in  open  court  obviates  the  necessity  for  a  cita- 
tion.23 

The  Parties  to  a  Writ  of  Error. 

The  only  parties  who  can  sue  out  a  writ  of  error  from  an 
obnoxious  judgment  are  parties  to  the  cause.24  It  is  also  an 
established  principle  that,  if  the  judgment  is  a  joint  judgment, 
all  the  parties  jointly  interested  must  unite  in  suing  out  the 
writ  of  error,  and  their  separate  names  must  be  given.  It  can- 
not be  sued  out  merely  in  a  firm  name.25 

The  reason  for  this  requirement  that  all  the  parties  must  join 
where  the  judgment  is  joint  is  that  otherwise  the  court  could 
not  execute  its  decree  on  the  parties  who  refused  to  join,  and 
such  parties  might  in  their  turn  attempt  to  review  the  case 
also. 

But  if  the  other  parties  interested  do  not  care  to  appeal, 
the  one  who  desires  to  do  so  can  accomplish  this  purpose  by  a 
course  equivalent  to  the  old  proceeding  known  as  "summons 
and  severance."  It  is  not  necessary  to  follow  this  old  proceed- 
ing exactly,  but  it  is  sufficient  to  give  written  notice  to  the  other 
parties  similarly  interested  to  appear,  and  to  make  the  record 
show  that  they  had  been  so  notified,  and  had  refused  to  join. 
In  this  way  only  can  all  parties  be  bound  by  the  action  of  the 
appellate  court,  and  the  decree  dispose  of  the  whole  matter  in 

22  Tripp  v.  Railway  Co.,  144  U.  S.  126,  12  Sup.  Ct.  655,  36  L.  Ed. 
371. 

23  U.  S.  v.  Phillips,  121  U.  S.  254,  7  Sup.  Ct.  874,  30  L.  Ed.  914. 
2*  Payne  v.  Niles,  20  How.  219,  15  L.  Ed.  895. 

25  Feibelman  v.  Packard,  108  XL  S.  14,  1  Sup.  Ct  138,  27  L.  Ed. 
634;   Estis  v.  Trabue,  128  U.  S.  225,  9  Sup.  Ct.  58,  32  L.  Ed.  437. 


506  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

controversy.     A  mere  statement  in  the  petition  for  appeal  that 
it  had  been  done  is  not  sufficient  for  this  purpose.26 

Method  of  Suspending  the  Enforcement  of  the  Judgment. 

Section  1000  of  the  Revised  Statutes  27  provides  as  follows: 
"Every  justice  or  judge  signing  a  citation  on  any  writ  of  error, 
shall,  except  in  cases  brought  up  by  the  United  States  or  by  di- 
rection of  any  department  of  the  government,  take  good  and 
sufficient  security  that  the  plaintiff  in  error  or  the  appellant 
shall  prosecute  his  writ  or  appeal  to  effect,  and  if  he  fail  to 
make  his  plea  good,  shall  answer  all  damages  and  costs,  where 
the  writ  is  a  supersedeas  and  stays  execution,  or  all  costs  only 
where  it  is  not  a  supersedeas  as  aforesaid." 

And  section  1007  of  the  Revised  Statutes  28  provides  as  fol- 
lows :  "In  any  case  where  a  writ  of  error  may  be  a  supersedeas, 
the  defendant  may  obtain  such  supersedeas  by  serving  the  writ 
of  error,  by  lodging  a  copy  thereof  for  the  adverse  party  in 
the  clerk's  office  where  the  record  remains,  within  sixty  days, 
Sundays  exclusive,  after  the  rendering  of  the  judgment  com- 
plained of,  and  giving  the  security  required  by  law  on  the  is- 
suing of  the  citation.  But  if  he  desires  to  stay  process  on  the 
judgment  he  may,  having  served  his  writ  of  error  as  afore- 
said, give  the  security  required  by  law  within  sixty  days  after 
the  rendition  of  such  judgment,  or  afterward  with  the  permis- 
sion of  a  justice  or  judge  of  the  appellate  court.  And  in  such 
case,  where  a  writ  of  error  may  be  a  supersedeas,  execution 
shall  not  issue  until  the  expiration  of  ten  days." 

The  bond  required  by  these  statutes  must  be  taken  by  the 
judge,  and  he  cannot  delegate  it  to  the  clerk.  The  statute 
implies  that  the  bond  must  be  approved  by  him,  but  this  ap- 
proval may  be  inferred — as,  for  instance,  where  it  appeared  on 
the  face  of  the  bond  that  the  sureties  had  justified  before  the 

26  Masterson  v.  Herndon,  10  Wall.  416,  19  L.  Ed.  953;    Inglehart 
v.  Stansbury,  151  U.  S.  68,  14  Sup.  Ct  237,  38  L.  E<L  76. 
2  7  U.  S.  Comp.  St.  1901,  p.  712. 
2»  U.  S.  Comp.  St.  1901,  p.  714. 


§  196)  REVIEW    BY    SUPREME    COURT.  507 

judge.29  This  provision  as  to  the  bond  is  directory  only,  and 
not  jurisdictional,  and  the  Supreme  Court  itself  may  give  an 
opportunity  to  execute  and  file  a  proper  bond  after  the  case  has 
been  taken  there.30 

The  character  of  bonds  to  be  given  is  regulated  by  Supreme 
Court  rule  29,**  which  reads  as  follows :  "Supersedeas  bonds 
in  the  circuit  court  must  be  taken,  with  good  and  sufficient  se- 
curity, that  the  plaintiff  in  error  or  appellant  shall  prosecute 
his  writ  or  appeal  to  effect  and  answer  all  damages  and  costs  if 
he  fail  to  make  his  plea  good.  Such  indemnity,  where  the  judg- 
ment or  decree  is  for  the  recovery  of  money  not  otherwise  se- 
cured, must  be  for  the  whole  amount  of  the  judgment  or  decree, 
including  'just  damages  for  delay,'  and  costs  and  interest  on  the 
appeal ;  but  in  all  suits  where  the  property  in  controversy  nec- 
essarily follows  the  event  of  the  suit,  as  in  real  actions,  or  re- 
plevin, and  in  suits  on  mortgages ;  or  where  the  property  is  in 
the  custody  of  the  marshal,  under  admiralty  process,  as  in 
cases  of  capture  or  seizure ;  or  where  the  proceeds  thereof,  or 
a  bond  for  the  value  thereof,  is  in  the  custody  or  control  of  the 
court,  indemnity  in  all  such  cases  is  only  required  in  an  amount 
sufficient  to  secure  the  sum  recovered  for  the  use  and  detention 
of  the  property  and  the  costs  of  the  suit  and  'just  damages  for 
delay,'  and  costs  and  interest  on  the  appeal." 

Any  wording,  however,  which  is  practically  the  equivalent  of 
this,  makes  the  bond  good.31 

The  bond  should  be  payable  to  the  defendants  in  error  of  rec- 
ord.32 

A  supersedeas  under  these  provisions  in  a  common-law  case 

2»  Silver  v.  Ladd,  6  Wall.  440,  18  L.  Ed.  828;  O'Reilly  v.  Edring- 
ton,  96  TJ.  S.  724,  24  L.  Ed.  659;  Haskins  v.  Railway  Co.,  109  U.  S. 
107,  3  Sup.  Ct.  72,  27  L.  Ed.  873. 

so  Davidson  v.  Lanier,  4  Wall.  447,  18  L.  Ed.  377 ;  Brown  v.  Mc- 
Connell,  124  U.  S.  4S9,  8  Sup.  Ct.  559,  31  L.  Ed.  495;  Stewart  v. 
Masterson,  124  U.  S.  493,  8  Sup.  Ct.  561,  31  L.  Ed.  507. 

**3  Sup.  Ct.  xvi. 

si  Gay  v.  Parpart,  101  U.  S.  391,  25  L.  Ed.  841. 

32  Davenport  v.  Fletcher,  16  How.  142,  14  L.  Ed.  879. 


508  PROCEDURE  ON  ERROR  AND  APPEAL.       (Ch.  22 

is  only  allowed  as  incident  to  a  writ  of  error,  and  cannot  be 
allowed  until  the  writ  of  error  is  issued.33 

The  supersedeas  is,  in  its  origin  and  nature,  simply  intended 
to  stop  execution  on  the  judgment  rendered  in  the  case  ap- 
pealed from.  It  cannot  prevent  the  bringing  of  similar  suits  or 
any  other  action.3* 

SAME— APPEAL. 

197.  An  appeal  is  a  process  borrowed  from  the  civil  law,  and 
differs  from  the  writ  of  error,  in  that  it  brings  np  all 
questions  both  of  law  and  fact.  It  is  the  regular  pro- 
cess in  all  cases  not  falling  under  the  classification  of 
common-law  cases,  the  most  important  branches  being 
equity  and  admiralty  cases.  A  habeas  corpus  proceed- 
ing is  also  reviewable  by  appeal,  though  that  is  a  com- 
mon-law writ;  the  statute  expressly  requiring  that  it 
shall  be  reviewable  in  this  manner. 3  5 

The  Supreme  Court  has  described  as  follows  the  difference 
between  an  appeal  and  a  writ  of  error:  "An  appeal  to  this 
court  in  a  proper  case  is  matter  of  right,  and  its  allowance  is  in 
reality  nothing  more  than  the  doing  of  those  things  which  are 
necessary  to  give  the  appellant  the  means  of  invoking  our  ju- 
risdiction. A  writ  of  error  is  a  process  of  this  court,  and  it  is 
issued,  therefore,  only  upon  our  authority ;  but  an  appeal  can 
be  taken  without  any  action  by  this  court.  All  that  need  be 
done  to  get  an  appeal  is  for  the  appellant  to  cite  his  adversary 
in  a  proper  way  to  appear  before  this  court,  and  for  him  to 
docket  the  case  here  at  the  proper  time.  Such  a  citation  as  is 
required  may  be  signed  by  a  judge  of  the  circuit  court  from 
which  the  appeal  is  taken,  or  by  a  justice  of  this  court."  8e 

ss  Ex  parte  Ralston,  119  U.  S.  G13,  7  Sup.  Ct.  317.  30  L.  Ed.  506. 

34  Hovey  v.  McDonald,  109  U.  S.  150,  3  Sup.  Ct.  136,  27  L.  Ed.  888; 
Natal  v.  Louisiana,  123  U.  S.  516,  8  Sup.  Ct.  253,  31  L.  Ed.  233. 

so  Rev.  St.  §§  763,  765  [U.  S.  Comp.  St.  1901,  pp.  594-597]. 

so  Brown  v.  McConnell,  124  U.  S.  4S9,  490,  491,  8  Sup.  Ct  559,  31 
L.  Ed.  495. 


§  197)  REVIEW    BY    SUPREME    COURT.  509 

Section  1012  of  the  Revised  Statutes37  provides  as  follows: 
"Appeals  from  the  circuit  courts  and  district  courts  acting  as 
circuit  courts,  and  from  district  courts  in  prize  causes,  shall  be 
subject  to  the  same  rules,  regulations,  and  restrictions  as  are 
or  may  be  prescribed  in  law  in  cases  of  writs  of  error." 

Under  this  provision  the  method  of  taking  an  appeal  is  sub- 
stantially the  same  as  that  already  described.  There  must  be  a 
properly  authenticated  transcript  of  the  record,  an  assignment 
of  error,  and  a  prayer  for  reversal.  The  allowance  of  an  ap- 
peal, however,  is  not  of  itself  a  writ,  like  the  issuing  of  a  writ 
of  error  by  the  clerk.  It  is  usually  allowed  somewhat  in  the 
following  language,  indorsed  at  the  end  of  the  petition  and 
prayer  for  reversal : 

"Appeal  allowed  as  prayed  for,  bond  in  the  penalty  of 
$ 


" Judge." 

How  and  by  Whom  Allowed. 

Appeals  to  the  Supreme  Court  from  the  circuit  or  district 
courts  are  allowed  by  the  same  judges  who  would  allow  writs 
of  error  under  similar  circumstances,  and  bonds  and  other 
steps  necessary  in  perfecting  the  appeal  are  taken  and  given  in 
the  same  way.  There  is,  however,  one  very  important  differ- 
ence between  perfecting  cases  by  appeal,  and  perfecting  them 
by  writ  of  error.  As  has  been  already  seen,  a  citation  is  neces- 
sary on  a  writ  of  error,  even  though  asked  in  open  court  during 
the  term  at  which  the  judgment  complained  of  was  rendered. 
But  when  an  appeal  is  taken  and  perfected  in  open  court,  a 
citation  is  not  necessary,  for  the  appeal  differs  from  the  writ  of 
error  in  being  practically  the  act  of  the  parties  instead  of 
the  court;  and,  when  taken  in  open  court,  all  parties  are  con- 
structively present,  and  have  notice.38  A  citation  is  necessary, 
however,  even  though  the  appeal  is  taken  in  open  court,  if  it 

3  7  U.  S.  Comp.  St.  1901,  p.  716. 

ss  Sage  v.  Railroad  Co.,  96  U.  S.  712,  24  L.  Ed.  641;  Dodge  v. 
Knowles,  114  U.  S.  430,  5  Sup.  Ct.  1197,  29  L.  Ed.  296. 


510  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

is  not  perfected  there  by  giving  the  necessary  bond,  for  the  op- 
posite party  is  not  required  to  presume  that  an  appeal  will  be 
prosecuted,  merely  from  the  fact  that  it  is  taken.39  No 
exact  language  is  necessary  in  allowing  an  appeal.  In  fact, 
taking  security  and  signing  the  citation  is  itself  the  equivalent 
of  such  allowance.40  The  obtaining  of  a  supersedeas  does  not 
suspend  all  decrees.  There  are  some  which,  from  their  intrin- 
sic nature,  are  not  suspended  by  a  supersedeas,  which  is  really  a 
common-law  writ  intended  to  stay  execution  on  a  judgment. 

Under  these  circumstances,  the  lower  court,  when  an  appeal 
is  asked,  should  be  requested  to  enter  some  order  itself  oper- 
ating as  a  stay  of  all  proceedings — a  request  which  any  court 
will  grant  if  occasion  requires.  Its  action,  however,  in  grant- 
ing or  refusing  such  a  request  is  largely  discretionary ;  and  the 
appellate  court  will  not  interfere  unless  in  a  very  plain  case, 
where  it  is  patent  that  a  failure  to  do  so  would  prevent  the 
appellant  from  reaping  the  fruits  of  his  victory,  and  prevent 
the  appellate  court  from  being  able  to  carry  out  its  decisions.41 
In  fact,  the  Supreme  Court,  under  the  powers  given  it  by  sec- 
tion 716  of  the  Revised  Statutes,42  which  authorizes  it  to  issue 
any  writs  necessary  for  the  protection  of  its  jurisdiction;  and 
the  circuit  court  of  appeals,  under  section  12  of  the  act  of 
March  3,  1891,43  giving  it  the  same  power,  could  issue  a  writ 
of  supersedeas  direct  for  the  purpose  of  protecting  a  litigant, 
though  the  exercise  of  this  power  is  very  rare.44 

Appeals  from  the  Circuit  Court  of  Appeals. 

The  time  of  review  by  the  Supreme  Court  of  decisions  of 
the  circuit  court  of  appeals  is  limited  by  the  concluding  para- 

39  Hewitt  v.  Filbert,  116  U.  S.  142,  6  Sup.  Ct.  319,  29  L.  Ed.  581; 
Jacobs  v.  George,  150  U.  S.  415,  14  Sup.  Ct.  159,  37  L.  Ed.  1127. 

40  Brandies  v.  Cocbrane,  105  U.  S.  262,  26  L.  Ed.  989. 

4i  Goddard  v.  Ordway,  94  U.  S.  672,  24  L.  Ed.  237;    Hovey  v.  Mc- 
Donald, 109  U.  S.  159,  3  Sup.  Ct.  136,  27  L.  Ed.  8S8. 
4  2  U.  S.  Comp.  St.  1901,  p.  580. 

43  U.  S.  Comp.  St.  1901,  p.  553. 

44  In  re  McKenzie,  ISO  U.  S.  536,  21  Sup.  Ct.  468,  45  L.  Ed.  657. 


§  197)  REVIEW    BY    SUPREME    COURT.  511 

graph  of  the  sixth  section  of  the  act  of  March  3,  1891,45  to 
one  year  after  the  entry  of  the  order  sought  to  be  reviewed. 
Here,  too,  only  final  decisions  of  the  circuit  court  of  appeals 
are  reviewable  by  the  Supreme  Court.  A  decision  of  a  circuit 
court  of  appeals  merely  affirming  an  order  which  awarded  a 
temporary  injunction  is  not  such  a  final  order.46  A  decision 
of  such  court  directing  a  circuit  court  to  remand  a  case  to  the 
state  court  which  had  been  improperly  removed  is  not  final.47 
A  decision  reversing  a  case  and  remanding  it  for  a  new  trial 
is  not  a  final  order.48  The  principle  controlling  the  question 
whether  the  decisions  of  an  appellate  court  are  final  decisions 
or  not  is  well  expressed  by  the  Supreme  Court  thus :  "A  de- 
cree, to  be  final  for  the  purposes  of  appeal,  must  leave  the  case 
in  such  a  condition  that,  if  there  be  an  affirmance  in  this  court, 
the  court  below  will  have  nothing  to  do  but  execute  the  decree 
it  has  already  entered."  49 

Hence  a  decree  dismissing  a  bill  in  equity  as  to  one  de- 
fendant who  had  demurred,  but  leaving  the  case  undisposed  of 
as  to  other  defendants  who  had  answered,  though  final  as  to  the 
parties  dismissed,  is  not  a  final  decree  in  the  sense  in  which  it 
is  used  in  connection  with  appeals,  and  an  appeal  cannot  be 
taken  from  it  until  the  final  disposition  of  the  entire  case. 

4R  U.  S.  Comp.  St.  1901,  p.  550. 

4«  KIRWAN  v.  MURPHY,  170  U.  S.  205,  18  Sup.  Ct.  592,  42  L.  Ed. 
1009. 

*t  German  Nat.  Bank  v.  Speckert,  181  U.  S.  405,  21  Sup.  Ct.  688, 

45  L.  Ed.  926. 

4  8  Montana  Min.  Co.  r.  Milling  Co.,  186  U.  S.  24,  22  Sup.  Ct  744, 

46  L.  Ed.  1039. 

4»  Bank  of  Rondout  v.  Smith,  156  U.  S.  330,  15  Sup.  Ct.  358,  29  L. 
Ed.  441.  This  was  an  appeal  from  a  decree  of  a  circuit  court,  but 
the  principle  is  the  same. 


512  PROCEDURE    ON    ERROR    AND    APPEAL.  (Cll.  22 


SAME— OTHER  METHODS. 

198.  In  addition  to  writ  of  error  and  appeal,  the  law  allows 
reviews  of  the  decisions  of  the  circuit  court  of  appeals 
in  certain  cases  by  means  of  certificate  from  that  court 
to  the  Supreme  Court,  and  by  certiorari  from  the  Su- 
preme Court  to  the  circuit  court  of  appeals. 
Reviews  of  the  decisions  of  the  territorial  and  other  mis- 
cellaneous courts  are  generally  by  appeal  or  writ  of  er- 
ror, in  accordance  with  regulations  prescribed  by  law 
for  those  cases. 

The  Different  Kinds  of  Process  Used  in  Taking  Cases  from 
Circuit  Courts  of  Appeals  to  the  Supreme  Court — Cer- 
tificate. 

The  first  method  used  is  by  certificate.  It  has  been  seen  that 
the  circuit  court  of  appeals  may  certify  to  the  Supreme  Court 
any  questions  or  propositions  of  law  concerning  which  it  de- 
sires the  instruction  of  that  court  for  its  proper  decision.  This 
is  the  act  of  the  court  itself,  without  any  motion  for  such  cer- 
tificate on  the  part  of  the  parties;  and  hence  no  process  or 
allowance  of  appeals,  or  anything  of  that  sort,  need  be  resorted 
to.  The  same  section  goes  on  to  provide  that  on  such  certifi- 
cate the  Supreme  Court  may  either  give  its  instruction  on  the 
questions  and  propositions  certified,  which  shall  be  binding  on 
the  circuit  court  of  appeals,  or  it  may  require  that  the  whole  rec- 
ord in  the  cause  may  be  sent  up  to  it  for  its  consideration,  and 
thereupon  shall  decide  the  whole  matter  in  controversy  in  the 
same  manner  as  if  it  had  been  brought  there  for  review  by  writ 
of  error  or  appeal. 

The  language  of  this  section  would  seem  to  imply  that  this 
action  on  the  part  of  the  Supreme  Court  is  also  the  act  of  the 
court,  and  not  of  the  parties,  and  requires  nothing  more  than 
an  order  of  some  sort  from  the  Supreme  Court  to  the  circuit 
court  of  appeals.  But  the  second  paragraph  of  Supreme  Court 
rule  37  provides: 

"If  application  is  thereupon  made  to  this  court  that  the  whole 


§  198)  REVIEW    BY    SUPREME    COURT.  513 

record  and  cause  may  be  sent  up  to  it  for  its  consideration,  the 
party  making  such  application  shall,  as  a  part  thereof,  furnish 
this  court  with  a  certified  copy  of  the  whole  of  said  record." 
This  rule  implies  that  the  Supreme  Court  will  listen  to  ap- 
plications by  the  parties  to  have  the  whole  record  sent  up,  and 
it  is  presumed  that  in  such  case  they  would  proceed  as  if 
on  motion,  making  the  application  in  the  form  of  a  printed  mo- 
tion accompanied  by  reasons  therefor,  and  furnishing  the  record 
as  above  required,  and  preferably  giving  the  opposite  party  no- 
tice. There  can  be  no  doubt,  however,  under  the  language  of 
the  statute  itself,  that  the  Supreme  Court  can  require  the  whole 
record  to  be  sent  up  to  it  of  its  own  motion,  and  without  any 
act  of  the  parties. 

Same — Certiorari. 

The  next  process  by  which  cases  may  be  taken  from  the 
circuit  court  of  appeals  to  the  Supreme  Court  is  by  certiorari. 
This  is  provided  by  the  second  paragraph  of  this  same  sec- 
tion of  the  act  of  March  3,  1891.  Paragraph  3  of  the  thirty- 
seventh  Supreme  Court  rule  provides  as  follows : 

"Where  application  is  made  to  this  court  under  section  6  of 
the  said  act  to  require  a  case  to  be  certified  to  it  for  its  review 
and  determination,  a  certified  copy  of  the  entire  record  of  the 
case  in  the  circuit  court  of  appeals  shall  be  furnished  to  this 
court  by  the  applicant  as  part  of  the  application." 

The  method  of  making  this  application  is  the  same  as  the 
method  of  making  any  motion  in  the  Supreme  Court.  Reason- 
able notice  should  be  given  to  the  adverse  parties.  The  motion 
should  be  printed,  including  therein  the  notice  and  proof  of 
service,  and  the  record  should  be  annexed.  No  oral  argument 
is  permitted,  and  therefore  the  motion  or  petition  for  the  writ 
should  contain  a  sufficient  statement  of  the  case  to  show  the 
Supreme  Court  that  this  extraordinary  remedy  should  be  per- 
mitted, or,  if  not  in  the  petition,  an  independent  brief  should  be 
filed,  showing  as  briefly  as  possible  the  same  thing.  It  is  better 
to  refrain  in  the  brief  from  discussing  the  questions  at  issue 
any  more  than  is  necessary  to  make  a  prima  facie  case,  for,  if 
Hughes  Fed.Jur. — 33 


514  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

the  writ  is  granted,  there  will  still  be  opportunity  to  file  an 
elaborate  brief. 

In  case  the  litigant  thinks  when  he  goes  to  the  circuit  court 
of  appeals  that  his  case  may  eventually  go  by  certiorari  to 
the  Supreme  Court,  it  is  best  to  have  an  extra  number  of  copies 
of  the  record  printed,  so  as  to  use  them  in  the  Supreme  Court. 
One  would  have  to  be  certified  as  an  original  record,  and  the 
remainder  can  usually  be  utilized,  for  the  style,  size,  and  type 
of  records  in  the  circuit  court  of  appeals  are  about  the  same 
as  those  required  by  the  rules  of  the  Supreme  Court 

Same — Writ  of  Error. 

The  third  method  of  taking  cases  from  the  circuit  courts 
of  appeals  to  the  Supreme  Court  is  by  writ  of  error.  This  takes 
up  the  same  character  of  cases  that  have  been  described  in  con- 
nection with  appeals  from  the  circuit  courts.  The  last  part  of 
section  11  of  the  act  of  March  3,  1891,60  provides: 

"*  *  *  All  provisions  of  law  now  in  force  regulating  the 
methods  and  system  of  review,  through  appeals  or  writs  of  er- 
ror, shall  regulate  the  methods  and  system  of  appeals  and  writs 
of  error  provided  for  in  this  act  in  respect  of  the  circuit  courts 
of  appeals,  including  all  provisions  for  bonds  or  other  se- 
curities to  be  required  and  taken  on  such  appeals  and  writs 
of  error,  and  any  judge  of  the  circuit  courts  of  appeals,  in  re- 
spect of  cases  brought  or  to  be  brought  to  that  court,  shall  have 
the  same  powers  and  duties  as  to  the  allowance  of  appeals  or 
writs  of  error,  and  the  conditions  of  such  allowance,  as  now  by 
law  belong  to  the  justices  or  judges  in  respect  of  the  existing 
courts  of  the  United  States  respectively." 

A  writ  of  error  from  the  Supreme  Court  to  the  circuit 
court  of  appeals  can  be  issued  by  the  clerk  of  the  circuit  court 
or  by  the  clerk  of  the  Supreme  Court.  It  can  be  allowed  and 
the  citation  issued  by  any  judge  competent  to  sit  in  the  circuit 
court  of  appeals,  or  by  a  justice  of  the  Supreme  Court. 

«o  U.  S.  Comp.  St.  1901,  p.  552. 


§  198)  REVIEW    BY    SUPREME    COURT.  515 

The  fourth  method  of  taking  cases  from  the  circuit  court  of 
appeals  to  the  Supreme  Court  is  by  appeal.  Such  an  appeal  can 
be  allowed  by  any  of  the  judges  of  either  court,  and  the  cita- 
tion signed  by  such  judges. 

Reviezv  of  Decisions  of  Territorial  Courts. 

In  those  cases  of  which  the  Supreme  Court  has  jurisdiction, 
the  review  is  by  writ  of  error  or  appeal,  according  to  the  nature 
of  the  case.61 

Reviezv  of  Decisions  of  the  Court  of  Appeals  of  the  District  of 
Columbia. 
The  method  of  review  in  this  case  also  is  by  writ  of  error 
or  appeal.62  There  have  been  some  interesting  decisions  on  ap- 
peals from  this  court  in  relation  to  the  character  of  judgments 
which  are  final,  and,  as  it  is  an  intermediate  court  somewhat 
similar  to  the  circuit  courts  of  appeals,  they  are  of  interest  and 
in  point  in  that  connection  also.  For  instance,  a  decision  of 
this  court  reversing  the  lower  court,  and  directing  the  entry 
of  a  decree  granting  an  injunction  on  final  hearing,  has  been 
held  to  be  a  final  decree,  as  it  leaves  practically  nothing  to  the 
lower  court  but  the  ministerial  act  of  enforcing  the  decree.53 
On  the  other  hand,  a  decision  reversing  the  inferior  court  in  a 
condemnation  proceeding,  and  remanding  the  case,  with  in- 
structions to  proceed  as  directed  by  the  act  of  Congress,  is  not 
a  final  decree.54 

Review  of  Decisions  of  the  Court  of  Claims. 
This  is  by  appeal  only.65 

si  Idaho  &  O.  Land  Co.  v.  Bradbury,  132  U.  S.  509,  10  Sup.  Ct. 
177,  33  L.  Ed.  433. 

52  u.  S.  Comp.  St.  1901,  p.  573. 

63  CHESAPEAKE  &  POTOMAC  TEL.  CO.  v.  MANNING,  186  U. 
S.  23S,  22  Sup.  Ct.  881,  46  L.  Ed.  1144. 

54  Macfarland  v.  Brown,  187  U.  S.  239,  23  Sup.  Ct.  105,  47  L.  Ed. 
159.  See,  also,  Macfarland  v.  Byrnes,  187  U.  S.  246,  23  Sup.  Ct.  107, 
17  L.  Ed.  162. 

55  Rev.  St.  707  [U.  S.  Comp.  St.  1901,  p.  574]. 


510  PROCEDURE  ON  ERROR  AND  APPEAL.      (Cll.  22 

Review  of  Decisions  of  the  Court  of  Private  Land  Claims. 

This,  too,  is  by  appeal  only.56 
Review  of  Decisions  of  the  State  Courts — Time  of  Taking. 

Section  1008  of  the  Revised  Statutes  57  prescribes  a  period  of 
two  years  for  writs  of  error  or  appeals  from  a  circuit  or  district 
court.  Section  1003  68  provides  as  follows:  "Writs  of  error 
from  the  Supreme  Court  to  a  state  court  in  cases  authorized 
by  law,  shall  be  issued  in  the  same  manner,  and  under  the 
same  regulations,  and  shall  have  the  same  effect  as  if  the  judg- 
ment or  decree  complained  of  had  been  rendered  or  passed 
in  a  court  of  the  United  States." 

Under  these  two  provisions,  taken  together,  the  limitation 
on  writs  of  error  to  the  state  courts  is  two  years. 

Same — Character  of  Decisions  Reviezvable. 

Here,  too,  only  final  decisions  of  the  state  courts  are  review- 
able. A  great  many  decisions  have  been  rendered  on  the 
question  what  constitutes  a  final  decision  under  such  circum- 
stances. The  test  applied  by  the  Supreme  Court  is  as  follows : 
"The  rule  is  well  settled  and  of  long  standing  that  the  judg- 
ment or  decree,  to  be  final,  within  the  meaning  of  that  term 
in  the  acts  of  Congress  giving  this  court  jurisdiction  on  appeals 
and  writs  of  error,  must  terminate  the  litigation  between  the 
parties  on  the  merits  of  the  case,  so  that,  if  there  should  be  an 
affirmance  here,  the  court  below  would  have  nothing  to  do  but 
to  execute  the  judgment  or  decree  it  had  already  rendered."  B9 

But  a  decision  of  a  state  appellate  court  reversing  a  decision 
of  the  inferior  court  which  had  sustained  a  demurrer  and  re- 
manding the  case,  with  instructions  to  overrule  the  demurrer 
and  permit  the  case  to  proceed,  is  not  a  final  judgment,  although 
it  may  adjudicate  the  principles  of  the  case.  In  such  case  it 
is  necessary  to  let  the  case  proceed  in  the  lower  court  to 

Be  Act  March  3,  1891,  c.  539,  §  9,  26  Stat.  858  [U.  S.  Comp.  St. 
1901,  p.  769]. 

67  U.  S.  Comp.  St.  1901,  p.  715. 

68  U.  S.  Comp.  St.  1901,  p.  713. 

eo  Bostwick  v.  Brinkerhoff,  100  U.  S.  3,  1  Sup.  Ct.  15,  27  L.  Ed.  73, 


§  198)  REVIEW    BY    SUPREME    COURT.  517 

final  judgment,  and  then  take  a  new  appeal  to  the  state  appel- 
late court,  even  though  it  is  a  foregone  conclusion  that  this 
latter  court  will  not  consider  questions  settled  by  its  first  appeal. 
On  its  affirmance  of  the  judgment  in  the  second  appeal,  a  writ 
of  error  can  then  be  taken  to  it  from  the  Supreme  Court,  which 
will  bring  up  the  whole  case  from  its  inception.60  So  a  decision 
of  a  state  appellate  court  reversing  a  case,  and  remanding  it 
for  a  new  trial  or  for  further  proceedings,  is  not  a  final  judg- 
ment; and  the  character  of  the  judgment  must  be  determined 
from  the  language  of  the  judgment  itself.81  So  a  decision  of 
a  state  appellate  court  reversing  the  decision  of  the  lower  court 
for  denying  a  change  of  venue,  and  remanding  the  case  for 
further  proceedings,  is  not  final.62  But  an  order  of  a  state 
appellate  court  reversing  the  lower  court  and  remanding  the 
case,  with  instructions  to  enter  a  certain  judgment  in  itself 
a  final  judgment,  is  final.63  And  where  a  state  appellate  court 
is  vested  by  the  law  of  its  state  with  a  discretion  whether  to  al- 
low a  writ  of  error  or  not,  and  on  application  it  refuses  a  writ 
of  error  on  the  ground  that  the  judgment  below  is  plainly  right, 
this  is  itself  such  a  final  order  of  the  appellate  court  as  author- 
izes a  writ  of  error  to  it  from  the  Supreme  Court.84 

Process  of  Review. 

These  cases  can  be  taken  to  the  Supreme  Court  by  writ  of 
error  only,  as  only  questions  of  law  are  reviewable.65  The 
writ  of  error  can  be  issued  by  the  clerk  of  the  circuit  court, 
which  includes  the  territory  where  the  Supreme  Court  of  the 
state  sits,  or  by  the  clerk  of  the  Supreme  Court.66     Writs  of 

eo  GREAT  WESTERN  TELEGRAPH  CO.  v.  BURNHAM,  162  U. 

S.  339,  16  Sup.  Ct.  850,  40  L.  Ed.  991. 

6i  Johnson  v.  Keith,  117  U.  S.  199,  6  Sup.  Ct.  669,  29  L.  Ed.  888; 
HASELTINE  v.  BANK,  183  U.  S.  130,  22  Sup.  Ct.  49,  46  L.  Ed.  117. 

ea  Cincinnati  St.  Ry.  Co.  v.  Snell,  179  U.  S.  395,  21  Sup.  Ct.  205, 
45  L.  Ed.  248. 

es  Mower  v.  Fletcher,  114  U.  S.  127,  5  Sup.  Ct.  799,  29  L.  Ed.  117. 

64  WILLIAMS  v.  BRUFFY,  102  U.  S.  248,  26  L.  Ed.  135. 

es  Rev.  St.  §  709  [U.  S.  Comp.  St.  1901,  p.  575]. 

eo  Sections  1003.  1004.  Rev.  St.  [U.  S.  Comp.  St.  1901,  p.  713]. 


518  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

error  in  this  case  may  be  allowed  by  the  chief  justice  or  presid- 
ing judge  of  the  state  court,  if  it  is  a  court  of  more  than  one 
judge,  or  by  any  justice  of  the  United  States  Supreme  Court. 
On  this  point  the  Supreme  Court  has  spoken  as  follows: 
"Writs  of  error  to  the  circuit  court,  under  the  twenty-second 
section  of  the  judiciary  act,  issue  as  a  matter  of  course,  and  can 
be  obtained  from  the  clerk  of  the  circuit  court,  and,  when 
filed  in  his  office  by  the  party,  are  duly  served ;  but  writs  of 
error  to  the  state  courts  can  only  issue  when  one  of  the  ques- 
tions mentioned  in  the  twenty-fifth  section  of  that  act  was  de- 
cided by  the  court  to  which  the  writ  is  directed ;  and,  in  order 
that  there  ma}'  be  some  security  that  such  a  question  was  de- 
cided in  the  case,  the  statute  requires  that  the  citation  must  be 
signed  by  the  chief  justice  or  judge  or  chancellor  of  the  court 
rendering  or  passing  the  judgment  or  decree  complained  of,  or 
by  a  justice  of  the  Supreme  Court  of  the  United  States.  It  has 
been  the  settled  doctrine  of  this  court  that  a  writ  of  error  to 
a  state  court  must  be  allowed  by  one  of  the  judges  above 
mentioned,  or  it  will  be  dismissed  for  want  of  jurisdiction. 

Accordingly,  where  the  writ  of  error  is  allowed  by  one  of 
the  associate  judges  of  the  state  court,  it  is  of  no  effect.68 
These  writs  of  error  differ  from  those  of  the  circuit  court  in 
the  important  particular  that  they  are  not  a  strict  matter  of 
right.  Not  only  in  the  above  quotation,  but  in  other  cases,  the 
Supreme  Court  has  said  that  they  must  be  allowed  by  one  of 
the  judges  above  named,  as  some  security  that  a  federal  ques- 
tion of  the  character  contemplated  is  involved  in  the  case.69 

The  return  of  these  writs  of  error  is  regulated  by  the  eighth 
rule  of  the  Supreme  Court,  under  which  the  clerk  to  which 
the  writ  of  error  is  directed  makes  return  by  transmitting  a  true 

67  BARTEMEYER  v.  IOWA,  14  Wall.  26,  20  L.  Ed.  792. 

es  Butler  v.  Gage,  138  U.  S.  52,  11  Sup.  Ct.  235,  34  L.  Ed.  869; 
Havnor  v.  New  York,  170  TJ.  S.  408,  18  Sup.  Ct.  631,  42  L.  Ed.  1087. 

e»  Gleason  v.  Florida,  9  Wall.  779,  19  L.  Ed.  730 ;  Spies  v.  Illiuois, 
123  TJ.  S.  131,  8  Sup.  Ct.  21,  22,  31  L.  Ed.  80. 


§  198)  REVIEW    BY    SUPREME    COURT.  519 

copy  of  the  record  and  all  the  accompanying  papers  under  his 
hand  and  the  seal  of  the  court.  He  must  include  in  this  the 
opinion  of  the  lower  court.  Under  section  999  of  the  Revised 
Statutes,70  the  citation  in  this  case  must  be  signed  by  the  chief 
justice  or  judge  or  chancellor  of  the  state  court  rendering  the 
judgment  or  passing  the  decree  complained  of,  or  by  a  justice 
of  the  Supreme  Court  of  the  United  States,  and  the  opposite 
party  must  have  at  least  thirty  days'  notice. 

Under  section  1000  of  the  Revised  Statutes,71  the  justice  or 
judge  signing  the  citation  has  power  to  take  the  proper  bond. 
In  order  for  this  bond  to  operate  as  a  supersedeas,  the  writ  of 
error  must  be  served  by  lodging  a  copy  for  the  adverse  party  in 
the  clerk's  office  where  the  record  remains  within  sixty  days, 
Sundays  exclusive,  after  the  rendering  of  the  judgment  com- 
plained of,  and  giving  the  security  required  by  law  on  the  is- 
suing of  the  citation.  The  record  must  show  that  this  has 
been  done.72  The  steps  necessary  to  properly  take  a  case  from 
the  state  court  of  last  resort  to  the  Supreme  Court  are  therefore 
as  follows : 

1.  Prepare  the  assignment  of  errors  and  the  petition  for  the 
writ  of  error.  These  are  papers  of  the  state  court,  and  should 
be  entitled  in  the  state  court.    They  can  be  signed  by  counsel. 

2.  Get  the  presiding  judge  of  the  state  court  to  allow  the 
writ  of  error.  A  Supreme  Court  justice  could  also  do  it,  but 
ordinarily  the  judge  of  the  state  court  is  more  accessible.  The 
allowance  can  be  indorsed  at  the  foot  of  the  petition  for  the 
writ  of  error,  somewhat  in  the  following  language: 

"Writ  of  error  allowed  upon  the  execution  of  a  bond  by 

in  the  sum  of  $ Said  bond,  when 

approved,  to  act  as  a  supersedeas. 

"Dated 

it 

"Chief  Justice  of " 

to  TJ.  S.  Comp.  St.  1901,  p.  712. 
ti  TJ.  S.  Comp.  St.  1901,  p.  712. 
T2  Rev.  St.  §  1007  [U.  S.  Comp.  St.  1901,  p.  714];    O'Dowd  v.  Rus- 


520  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

Care  should  be  taken  to  see  that  the  signature  of  the  judge 
shows  that  he  is  the  chief  justice  or  presiding  judge. 

3.  Execute  the  bond  with  proper  acknowledgments  and  jus- 
tifications, and  have  the  chief  justice  approve  it.  The  usual 
way  of  doing  this  is  simply  to  write  at  the  bottom  of  it :  "Ap- 
proved  ,  Chief  Justice  of " 

4.  Get  the  clerk  of  the  United  States  circuit  court  for  the 
district  to  issue  the  writ  of  error,  and  have  the  presiding  judge 
of  the  state  court  indorse  at  the  bottom:  "Allowed. 
,  Chief  Justice  of " 

5.  Have  the  citation  signed  also  by  the  chief  justice  of  the 
state  court,  and  attested  by  the  clerk  of  that  court. 

6.  Have  the  citation   served,   or  service  acknowledged. 

7.  Take  these  various  papers,  leave  the  original  assignment 
of  errors,  petition  for  writ  of  error,  allowance,  and  bond,  in 
the  state  court,  have  copies  of  these  papers  made  and  attach 
them  to  the  transcript  of  the  record ;  attach  also  to  the  tran- 
script the  original  writ  of  error  and  the  original  citation,  with 
proof  of  service ;  have  the  clerk  of  the  state  court  certify  that 
the  original  of  the  bond  was  lodged  in  his  office,  and  that  the 
original  writ  of  error  was  lodged  there  on  a  given  date,  and  a 
copy  for  each  one  of  the  defendants  in  error  (naming  them), 
and  then  have  him  certify  all  the  papers  as  follows: 

"Return  to  Writ  of  Error. 

"In  obedience  to  the  commands  of  the  within  writ,  I  here- 
with transmit  to  the  Supreme  Court  of  the  United  States  a  duly 
certified  transcript  of  the  complete  record  and  proceedings  in 
the  within-entitled  cause,  with  all  things  concerning  the  same. 

"Witness  my  hand  and  the  seal  of  the  Supreme  Court  of 
this day  of " 

8.  Send  these  papers  to  the  clerk  of  the  Supreme  Court,  with 
an  entry  of  appearance,  and,  last  but  not  least,  a  check  for  $2.j. 


sell,  14  "Wall.  402,  20  L.  Ed.  857;   Board  of  Commissioners  of  Boise 
Co.  v.  Gorman,  19  Wall.  6G1,  22  L.  Ed.  226. 


§  199)  REVIEW   BY  CIRCUIT   COURT   OF  APPEALS.  521 


REVIEW  BY  THE   CIRCUIT  COURT  OF  APPEALS. 

199.  Review  by  the  circuit  court  of  appeals  of  decisions  in  the 
cases  over  which  it  exercises  appellate  jurisdiction  is 
had  by  means  of  writ  of  error  or  appeal  in  accordance 
with  the  general  principles  governing  these  methods. 
Only  final  decisions  of  the  lower  courts  can  be  made  the  sub- 
ject of  this  appellate  review,  except  that  appeals  are 
allowed  by  law  in  certain  interlocutory  decrees  or  or- 
ders granting  or  continuing  injunctions  or  appointing 
receivers,  provided  certain  requirements  prescribed  by 
the  statute  be  followed  in  the  prosecution  of  such  re- 


Method  of  Maturing  Cases  in  the  Circuit  Courts  of  Appeals — 
From  the  District  and  Circuit  Courts. 

The  time  of  taking  these  appeals  is  limited  by  the  eleventh 
section  of  the  act  of  March  3,  1891,78  to  six  months  after  the 
entry  of  the  order  complained  of,  except  where  "a  lesser  time 
is  now  by  law  limited  for  appeals  or  writs  of  error." 

One  instance  of  such  lesser  time  is  appeals  from  certain  in- 
terlocutory decrees,  which  are  limited  to  thirty  days,  and  ap- 
peals under  section  25  of  the  bankrupt  act,  which  are  limited  to 
ten  days. 

Character  of  Decisions  Reviewable. 

Here,  too,  the  general  rule  is  that  only  final  decisions  are  re- 
viewable, and  the  authorities  heretofore  quoted  are  applicable 
as  indicating  what  are  final  decisions;  but  there  is  one  im- 
portant exception,  in  case  of  review  of  decisions  of  district  and 
circuit  courts  by  the  circuit  court  of  appeals.  It  is  provided 
by  the  seventh  section  of  the  act  of  March  3,  1891,74  which 
reads  as  follows :  "That  where  upon  a  hearing  in  equity  in  a 
district  court  or  in  a  circuit  court,  or  by  a  judge  thereof  in  va- 
cation, an  injunction  shall  be  granted  or  continued  or  a  receiv- 
es U.  S.  Comp.  St.  1901,  p.  552. 
t«  U.  S.  Comp.  St.  1901,  p.  550. 


522  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  22 

er  appointed,  by  an  interlocutory  order  or  decree,  in  a  cause  in 
which  an  appeal  from  a  final  decree  may  be  taken  under  the 
provisions  of  this  act  to  the  circuit  court  of  appeals,  an  appeal 
may  be  taken  from  such  interlocutory  order  or  decree  granting 
or  continuing  such  injunction  or  appointing  such  receiver  to  the 
circuit  court  of  appeals:  provided,  that  the  appeal  must  be 
taken  within  30  days  from  the  entry  of  such  order  or  decree, 
and  it  shall  take  precedence  in  the  appellate  court;  and  the 
proceedings  in  other  respects  in  the  court  below  shall  not  be 
stayed,  unless  otherwise  ordered  by  that  court,  or  by  the 
appellate  court  or  a  judge  thereof,  during  the  pendency  of  such 
appeal :  provided  further,  that  the  court  below  may  in  its  discre- 
tion require  as  a  condition  of  the  appeal  an  additional  bond." 

This  section  has  been  changed  from  the  original  form  by 
two  amendments,  the  above  quoted  being  the  last.  The  hard- 
ships of  injunction  or  receivership  orders  constitute  the  reason 
for  making  an  exception  to  the  general  rule  of  appellate  pro- 
ceedings allowing  only  final  decrees  to  be  reviewed. 

An  order  merely  refusing  to  dissolve  an  injunction  already 
granted  is  not  an  order  continuing  an  injunction,  in  the  sense 
of  this  section.75  But  an  order  refusing  to  dissolve  an  injunc- 
tion already  granted,  and  expressly  providing  that  it  shall  be 
continued  to  the  final  hearing,  is  appealable  under  this  sec- 
tion.76 

An  order  appointing  a  receiver,  though  ex  parte,  is  appeal- 
able under  this  provision.77  So,  too,  an  order  confirming  the 
appointment  of  a  receiver.78 

It  is  clear  from  the  language  of  the  act  that  orders  relative 
to  injunctions  or  receivers  can  be  appealed  to  the  circuit  court 
of  appeals  only  in  cases  which  could  be  taken  to  the  circuit 

T6  Rowan  v.  Ide,  107  Fed.  161,  46  O.  C.  A.  214. 

7  6  Berliner  Gramophone  Co.  v.  Seaman,  108  Fed.  714,  47  C.  O.  A. 
630. 

ft  Joseph  Dry  Goods  Co.  v.  Hecht,  120  Fed.  760,  57  C.  C.  A.  64. 

7  8  Pacific  Northwest  Packing  Co.  v.  Allen,  109  Fed.  515,  48  C.  C 
A.  521. 


§  199)  REVIEW  BY   CIRCUIT  COURT  OF  APPEALS.  523 

court  of  appeals  if  the  decree  was  final.  Hence,  if  the  case 
involved  a  constitutional  question  which  could  only  be  taken 
to  the  Supreme  Court  on  final  decree  under  the  fifth  section, 
an  order  granting  an  injunction  or  appointing  a  receiver  in  it 
could  not  be  appealed  to  the  circuit  court  of  appeals.79  When 
a  case  is  taken  to  the  circuit  court  of  appeals  under  this  provi- 
sion, the  latter  court  has  the  power,  in  its  discretion,  to  con- 
sider the  whole  case,  and  enter  a  final  decree  in  it,  if  it 
thinks  the  case  one  in  which  it  should  exercise  this  power.80  In 
such  appeals  it  is  discretionary  with  the  lower  court  whether 
to  suspend  the  order  of  injunction  or  the  appointment  of  a 
receiver.  The  language  of  the  act  speaking  of  suspending  pro- 
ceedings "in  other  respects"  was  not  intended  to  imply  that  the 
lower  court  could  not  suspend  in  these  respects  also.81 
Process  of  Review. 

This  may  be  by  writ  of  error  or  appeal,  according  to  the  na- 
ture of  the  case.  The  writ  of  error  under  the  provisions  of  sec- 
tion 11,  already  quoted,  can  be  issued  by  the  clerk  of  the  circuit 
court  or  the  clerk  of  the  circuit  court  of  appeals;  and  the 
judge  of  either  the  higher  or  lower  court  can  allow  the  appeal 
or  writ  of  error,  approve  the  bond,  sign  the  citation,  and  do 
all  other  acts  necessary  to  perfect  the  appeal.82 
Review  of  Decisions  of  Territorial  Courts. 

The  cases  from  these  courts  which  are  reviewable  by  the  cir- 
cuit court  of  appeals  are  taken  up  by  writ  of  error  or  appeal, 
according  to  their  nature.83 

'»  Dawson  v.  Trust  Co.,  102  Fed.  200,  42  C.  C.  A.  258. 

«o  Smith  v.  Ironworks,  165  U.  S.  518,  17  Sup.  Ct.  407,  41  L.  Ed. 
810;  Berliner  Gramophone  Co.  v.  Seaman,  110  Fed.  30,  49  C.  C.  A. 
99. 

si  In  re  Haberman  Mfg.  Co.,  147  U.  S.  525,  13  Sup.  Ct.  527,  37  L. 
Ed.  266 ;  In  re  McKenzie,  180  U.  S.  536,  550,  21  Sup.  Ct.  468,  45  L.  Ed. 
657. 

saTornanses  v.  Melsing,  106  Fed.  775,  45  C.  C.  A.  615;  In  re  Mc- 
Kenzie, ISO  U.  S.  536,  550,  21  Sup.  Ct.  468,  45  L.  Ed.  657. 

8  3  Act  March  3,  1891,  c.  517,  §  15,  26  Stat.  830  [U.  S.  Comp.  St. 
1901,  p.  554]. 


524  PROCEDURE    ON    ERROR    AND    APPEAL.  (Cll.  22 


TRIAL  IN  THE  APPELLATE  COURTS. 

200.    Trials  in  the  appellate  courts  are  governed  by  rules  pre- 
scribed by  tiieni  under  authority  of  law. 

The  first  step  necessary  is  docketing  the  case.  In  the  Su- 
preme Court  this  is  regulated  by  rule  9,  and  it  must  be  dock- 
eted by  the  return  day.  Substantially  similar  rules  prevail  in  all 
the  circuit  courts.  The  next  step  necessary  is  to  have  the  rec- 
ord printed.  An  estimate  of  the  cost  is  furnished  by  the 
clerk,  and  the  appellant  must  deposit  the  necessary  funds.  In 
the  Supreme  Court  he  must  also  deposit  twenty-five  dollars 
on  the  entry  of  his  appearance,  and  most,  if  not  all,  of  the  cir- 
cuit courts  of  appeals  have  a  similar  rule. 

Further  Proof. 

The  general  rule  as  to  appellate  proceedings  is  that  the 
case  is  heard  on  the  record  coming  from  the  lower  court,  which 
is  printed  in  advance  of  the  hearing.  There  are  a  few  cases 
in  which  further  proof  can  be  taken  in  the  appellate  court.  The 
most  important  of  these  are  admiralty  cases.  These  cases  go 
to  the  circuit  courts  of  appeals  ordinarily,  and  in  some  of  the 
circuits,  as  in  the  First  and  Second  Circuits,  the  matter  of  fur- 
ther proof  is  regulated  by  rule.  In  many  there  is  no  express 
rule  on  the  subject,  but  the  principle  is  about  the  same,  and  it 
corresponds  with  the  principle  which  formerly  governed  the 
taking  of  proof  in  such  cases  in  the  Supreme  Court.  That  prin- 
ciple is  that  it  was  only  allowed  where  it  was  impossible  to  have 
the  proof  in  the  lower  court — such  as  cases  of  after-discovered 
evidence  or  loss  of  evidence.  Unless  this  principle  were  ap- 
plied, courts  would  constantly  find  an  entire  new  case  made  in 
the  appellate  court.84  Rule  12  of  the  Supreme  Court  and  sec- 
tion 698  of  the  Revised  Statutes  86  also  provide  for  taking  new 
proof  in  admiralty  in  the  Supreme  Court.    The  rule  and  the 

84  The  Mabey,  10  Wall.  419,  19  L.  Ed.  963. 
«6  u.  S.  Comp.  St.  1901,  p.  568. 


§  200)  TRIAL   IN   APPELLATE    COURTS.  525 

statute  were  both  in  force  before  the  act  conferring  final  juris- 
diction in  admiralty  cases  on  the  circuit  court  of  appeals; 
but,  if  an  admiralty  case  should  be  taken  to  the  Supreme  Court 
— as,  for  instance,  where  it  involved  a  constitutional  and  juris- 
dictional question — or  went  up  by  certiorari,  there  is  no  reason 
why  this  rule  and  statute  would  not  still  prevail,  and  permit 
the  taking  of  new  evidence  in  the  Supreme  Court  when  the  cir- 
cumstances justified  it. 

Another  case  where  the  Supreme  Court  may  allow  the  tak- 
ing of  additional  testimony  is  appeals  from  the  court  of  pri- 
vate land  claims.86 

Briefs. 

The  Supreme  Court  and  circuit  court  of  appeals,  whilt 
permitting  oral  argument,  require  printed  arguments  or  briefs 
to  be  filed  in  advance  of  the  calling  of  the  case  on  the  docket. 
The  appellant's  brief  is  required  by  Supreme  Court  rule  21* 
to  contain  a  specification  of  the  errors  relied  on,  and  various 
other  information,  rendering  it  easy  for  the  judges  to  find 
out  the  issues  involved  without  the  necessity  of  constant  ref- 
erence to  the  record.  Similar  rules  apply  in  the  circuits.  The 
preparation  of  the  brief  is  the  most  responsible  part  of  the 
work  in  the  appellate  courts.  In  these  courts  special  care 
should  be  taken  to  present  the  facts,  and  only  the  necessary 
facts,  as  clearly  as  possible,  and  in  the  discussion  of  questions  of 
law  the  brief  should  not  be  padded  with  a  great  mass  of  ref- 
erences. One  or  two  pointed  cases  on  each  point  will  have  more 
effect  than  a  great  multitude.  If  the  judges  of  any  appellate 
court  were  to  read  every  single  case  referred  to  in  every  single 
brief  during  any  one  term,  there  is  hardly  a  book  in  their 
library  which  they  would  not  have  to  handle  two  or  three  times 
over. 

In  case  of  defeat  in  the  appellate  court,  a  rehearing  may  be 

•6  Act  March  3,  1891,  c.  539,  §  9,  26  Stat.  858  [U.  S.  Coiup.  St. 
1901,  p.  769]. 
*3  Sup.  Ct.  xil. 


520  PROCEDURE  ON  ERROR  AND  APPEAL.      (Ch.  '22 

asked  during  the  term,  but  cannot  be  asked  after  the  term.87 
The  granting  of  a  rehearing,  however,  is  the  exception. 

When  the  appellate  court  renders  its  decision,  it  notifies  the 
inferior  court  thereof  by  sending  down  its  mandate.  In  ap- 
peals from  the  district  or  circuit  court  to  the  Supreme  Court, 
the  paper  goes  back  to  the  court  of  first  jurisdiction;  and  in 
appeals  from  the  circuit  courts  of  appeals  to  the  Supreme 
Court,  also,  the  mandate  goes  direct  to  the  district  or  circuit 
court,  and  not  to  the  circuit  court  of  appeals.88 

st  Bushnell  v.  Smelting  Co.,  150  U.  S.  82,  14  Sup.  Ct.  22,  37  L.  Ed. 
1007. 

ss  Act  March  3,  1891,  c.  517,  §  10,  26  Stat.  829  [U.  S.  Comp.  St. 
1901,  p.  552]. 


APPENDIX. 


RULES  OF  THE  SUPREME  COURT  OF 
THE  UNITED  STATES. 


1. 

CLERK. 

1.  The  clerk  of  this  court  shall  reside  and  keep  the  office  at  the 
seat  of  the  National  Government,  and  he  shall  not  practice,  either 
as  attorney  or  counsellor,  in  this  court,  or  in  any  other  court,  while 
he  shall  continue  to  be  clerk  of  this  court. 

2.  The  clerk  shall  not  permit  any  original  record  or  paper  to  be 
taken  from  the  court-room,  or  from  the  office,  without  an  order  from 
the  court,  except  as  provided  by  Rule  10. 

2. 

ATTORNEYS  AND  COUNSELLORS. 

1.  It  shall  be  requisite  to  the  admission  of  attorneys  or  counsellors 
to  practice  in  this  court,  that  they  shall  have  been  such  for  three 
years  past  in  the  supreme  courts  of  the  States  to  which  they  re- 
spectively belong,  and  that  their  private  and  professional  character 
shall  appear  to  be  fair. 

2.  They  shall  respectively  take  and  subscribe  the  following  oath 
or  affirmation,  viz: 

I, ,  do  solemnly  swear  [or  affirm]  that  I  will  demean 

myself,  as  an  attorney  and  counsellor  of  this  court,  uprightly,  and 
according  to  law;  and  that  I  will  support  the  Constitution  of  the 
United  States. 

3. 

PRACTICE. 

This  court  considers  the  former  practice  of  the  courts  of  king's 
bench  and  of  chancery,  in  England,  as  affording  outlines  for  the  prac- 

Hughes  Fed.Jxje.  (527) 


528  APrEXDix. 

tice  of  this  court;   and  will,  from  time  to  time,  make  such  alterations 
therein  as  circumstances  may  render  necessary. 

4. 

BILL  OF  EXCEPTIONS. 

The  judges  of  the  circuit  and  district  courts  shall  not  allow  any 
bill  of  exceptions  which  shall  contain  the  charge  of  the  court  at  large 
to  the  jury  in  trials  at  common  law,  upon  any  general  exception  to 
the  whole  of  such  charge.  But  the  party  excepting  shall  be  required 
to  state  distinctly  the  several  matters  of  law  in  such  charge  to  which 
he  excepts;  and  those  matters  of  law,  and  those  only,  shall  be  in- 
serted in  the  bill  of  exceptions  and  allowed  by  the  court 

5. 

PROCESS. 

1.  All  process  of  this  court  shall  be  in  the  name  of  the  President 
of  the  United  States,  and  shall  contain  the  Christian  names,  as  well 
as  the  surnames,  of  the  parties. 

2.  When  process  at  common  law  or  in  equity  shall  issue  against  a 
State,  the  same  shall  be  served  on  the  governor,  or  chief  executive 
magistrate,  and  attorney-general  of  such  State. 

3.  Process  of  subpoena,  issuing  out  of  this  court,  in  any  suit  in 
equity,  shall  be  served  on  the  defendant  sixty  days  before  the  return- 
day  of  the  said  process;  and  if  the  defendant,  on  such  service  of  the 
subpoena,  shall  not  appear  at  the  return-day,  the  complainant  shall 
be  at  liberty  to  proceed  ex  parte. 

6. 

MOTIONS. 

1.  All  motions  to  the  court  shall  be  reduced  to  writing,  and  shall 
contain  a  brief  statement  of  the  facts  and  objects  of  the  motion. 

2.  One  hour  on  each  side  shall  be  allowed  to  the  argument  of  a 
motion,  and  no  more,  without  special  leave  of  the  court,  granted  be- 
fore the  argument  begins. 

3.  No  motion  to  dismiss,  except  on  special  assignment  by  the  court, 
shall  be  heard,  unless  previous  notice  has  been  given  to  the  adverse 
party,  or  the  counsel  or  attorney  of  such  party. 

4.  All  motions  to  dismiss  writs  of  error  and  appeals,  except  motions 
to  docket  and  dismiss  under  Rule  9,  must  be  submitted  in  the  first 
instance  on  printed  briefs  or  arguments.  If  the  court  desires  further 
argument  on  that  subject,  it  will  be  ordered  in  connection  with  the 


RULES    OF    SUPREME    COURT    OF    UNITED    STATES.  029 

hearing  on  the  merits.  The  party  moving  to  dismiss  shall  serve  no- 
tice of  the  motion,  with  a  copy  of  his  brief  of  argument,  on  the  coun- 
sel for  plaintiff  in  error  or  appellant  of  record  in  this  court,  at  least 
three  weeks  before  the  time  fixed  for  submitting  the  motion,  in  all 
cases  except  where  the  counsel  to  be  notified  resides  west  of  the 
Rocky  Mountains,  in  which  case  the  notice  shall  be  at  least  thirty 
days.  Affidavits  of  the  deposit  in  the  mail  of  the  notice  and  brief 
to  the  proper  address  of  the  counsel  to  be  served,  duly  post-paid,  at 
such  time  as  to  reach  him  by  due  course  of  mail,  the  three  weeks  or 
thirty  days  before  the  time  fixed  by  the  notice,  will  be  regarded  as 
prima  facie  evidence  of  service  on  counsel  who  reside  without  the 
District  of  Columbia.  On  proof  of  such  service,  the  motion  will  be 
considered,  unless,  for  satisfactory  reasons,  further  time  be  given  by 
the  court  to  either  party. 

5.  There  may  be  united,  with  a  motion  to  dismiss  a  writ  of  error 
or  an  appeal,  a  motion  to  affirm  on  the  ground  that,  although  the 
record  may  show  that  this  court  has  jurisdiction,  it  is  manifest  the 
writ  or  appeal  was  taken  for  delay  only,  or  that  the  question  on 
which  the  jurisdiction  depends  is  so  frivolous  as  not  to  need  further 
argument. 

6.  The  court  will  not  hear  arguments  on  Saturday  (unless  for  spe- 
cial cause  it  shall  order  to  the  contrary),  but  will  devote  that  day  to 
the  other  business  of  the  court.  The  motion-day  shall  be  Monday  of 
each  week;  and  motions  not  required  by  the  rules  of  the  court  to  be 
put  on  the  docket  shall  be  entitled  to  preference  immediately  after 
the  reading  of  opinions,  if  such  motions  shall  be  made  before  the 
court  shall  have  entered  upon  the  hearing  of  a  case  upon  the  docket. 

7. 

LAW   LIBRARY. 

1.  During  the  session  of  the  court,  any  gentleman  of  the  bar  having 
a  case  on  the  docket,  and  wishing  to  use  any  book  or  books  in  the  law 
library,  shall  be  at  liberty,  upon  application  to  the  clerk  of  the  court, 
to  receive  an  order  to  take  the  same  (not  exceeding  at  any  one  time 
three)  from  the  library,  he  being  thereby  responsible  for  the  due  re- 
turn of  the  same  within  a  reasonable  time,  or  when  required  by  the 
clerk.  It  shall  be  the  duty  of  the  clei\i  to  keep,  in  a  book  for  that 
purpose,  a  record  of  all  books  so  delivered,  which  are  to  be  charged 
against  the  party  receiving  the  same.  And  in  case  the  same  shall  not 
be  so  returned,  the  party  receiving  the  same  shall  be  responsible  for 
and  forfeit  and  pay  twice  the  value  thereof,  and  also  one  dollar  per 
day  for  each  day's  detention  beyond  the  limited  time. 

Hughes  Fed.Jue. — 34 


530  APPENDIX. 

2.  The  clerk  shall  deposit  In  the  law  library,  to  be  there  carefully 
preserved,  one  copy  of  the  printed  record  in  every  case  submitted  to 
the  court  for  its  consideration,  and  of  all  printed  motions,  briefs,  or 
arguments  filed  therein. 

3.  The  marshal  shall  take  charge  of  the  books  of  the  court,  together 
with  such  of  the  duplicate  law-books  as  Congress  may  direct  to  be 
transferred  to  the  court,  and  arrange  them  in  the  conference-room, 
which  he  shall  have  fitted  up  in  a  proper  manner;  and  he  shall  not 
permit  such  books  to  be  taken  therefrom  by  any  one  except  the  jus- 
tices of  the  court 

8. 

WRIT  OF  ERROR,  RETURN  AND  RECORD. 

1.  The  clerk  of  the  court  to  which  any  writ  of  error  may  be  di- 
rected shall  make  return  of  the  same,  by  transmitting  a  true  copy  of 
the  record,  and  of  the  assignment  of  errors,  and  of  all  proceedings  in 
the  case,  under  his  hand  and  the  seal  of  the  court. 

2.  In  all  cases  brought  to  this  court,  by  writ  of  error  or  appeal,  to 
review  any  judgment  or  decree,  tbe  clerk  of  the  court  by  which  such 
judgment  or  decree  was  rendered  shall  annex  to  and  transmit  with 
the  record  a  copy  of  the  opinion  or  opinions  filed  in  the  case. 

3.  No  case  will  be  heard  until  a  complete  record,  containing  in 
itself,  and  not  by  reference,  all  the  papers,  exhibits,  depositions,  and 
other  proceedings  which  are  necessary  to  the  hearing  in  this  court, 
shall  be  filed. 

4.  Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  the 
presiding  judge  in  any  circuit  court,  or  district  court  exercising  cir- 
cuit-court jurisdiction,  that  original  papers  of  any  kind  should  be  in- 
spected in  this  court  upon  writ  of  error  or  appeal,  such  presiding 
judge  may  make  such  rule  or  order  for  the  safe-keeping,  transporting, 
and  return  of  such  original  papers  as  to  him  may  seem  proper,  and 
this  court  will  receive  and  consider  such  original  papers  in  connec- 
tion with  the  transcript  of  the  proceedings. 

5.  All  appeals,  writs  of  error,  and  citations  must  be  made  return- 
able not  exceeding  thirty  days  from  the  day  of  signing  the  citation, 
whether  the  return  day  fall  in  vacation  or  in  term  time,  and  be 
served  before  the  return  day. 

6.  The  record  in  cases  of  admiralty  and  maritime  jurisdiction, 
when  under  the  requirements  of  law  the  facts  have  been  found  in  tbe 
court  below,  and  the  power  of  review  is  limited  to  the  determination 
of  questions  of  law  arising  on  the  record,  shall  be  confined  to  the 
pleadings,  the  findings  of  fact,  and  conclusions  of  law  thereon,  the 
bills  of  exceptions,   the  final  judgment  or  decree,   and  such  inter- 


RULES    OP    SUPREME    COURT    OF    UNITED    STATES.  531 

Jocutory  orders  and  decrees  as  may  be  necessary  to  a  proper  review 
of  the  case. 

9. 

DOCKETING  CASES. 

1.  It  shall  be  the  duty  of  the  plaintiff  in  error  or  appellant  to  docket 
the  case  and  file  the  record  thereof  with  the  clerk  of  this  court  by  or 
before  the  return  day,  whether  in  vacation  or  in  term  time.  But, 
for  good  cause  sbown,  the  justice  or  judge  who  signed  the  citation,  or 
any  justice  of  this  court,  may  enlarge  the  time,  by  or  before  its 
expiration,  the  order  of  enlargement  to  be  filed  with  the  clerk  of  this 
court.  If  the  plaintiff  in  error  or  appellant  shall  fail  to  comply  with 
this  rule,  the  defendant  in  error  or  appellee  may  have  the  cause  dock- 
eted and  dismissed  upon  producing  a  certificate,  whether  in  term 
time  or  vacation,  from  the  clerk  of  the  court  wherein  the  judgment 
or  decree  was  rendered,  stating  the  case  and  certifying  that  such 
writ  of  error  or  appeal  has  been  duly  sued  out  or  allowed.  And  in 
no  case  shall  the  plaintiff  in  error  or  appellant  be  entitled  to  docket 
the  case  and  file  the  record  after  the  same  shall  bave  been  docketed 
and  dismissed  under  this  rule,  unless  by  order  of  the  court. 

2.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket 
the  case  and  file  a  copy  of  the  record  with  the  clerk  of  this  court; 
and,  if  the  case  is  docketed  and  a  copy  of  the  record  filed  with  the 
clerk  of  this  court  by  the  plaintiff  in  error  or  appellant  within  the 
period  of  time  above  limited  and  prescribed  by  this  rule,  or  by  the 
defendant  in  error  or  appellee  at  any  time  thereafter,  the  case  shall 
stand  for  argument. 

3.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  writ 
of  error  or  appeal,  the  appearance  of  the  counsel  for  the  party  docket- 
ing the  case  shall  be  entered. 

4.  In  all  cases  where  the  period  of  thirty  days  is  mentioned  in  rule 
8,  it  shall  be  extended  to  sixty  days  in  writs  of  error  and  appeals 
from  California,  Oregon,  Nevada,  Washington,  New  Mexico,  Utah, 
Arizona,  Montana,  Wyoming,  North  Dakota,  South  Dakota,  Alaska 
and  Idaho. 

10. 

PRINTING  RECORDS. 

1.  In  all  cases  the  plaintiff  in  error  or  appellant,  on  docketing  a 
case  and  filing  the  record,  shall  enter  into  an  undertaking  to  the 
clerk,  with  surety  to  his  satisfaction,  for  the  payment  of  his  fees,  or 
otherwise  satisfy  him  in  that  behalf. 

2.  The  clerk  shall  cause  an  estimate  to  be  made  of  the  cost  of  print- 
ing the  record,  and  of  his  fee  for  preparing  it  for  the  printer  and 


532  APPENDIX. 

supervising  the  printing,  and  shall  notify  to  the  party  docketing  the 
case  the  amount  of  the  estimate.  If  he  shall  not  pay  it  within  a 
reasonable  time,  the  clerk  shall  notify  the  adverse  party,  and  he  may 
pay  it  If  neither  party  shall  pay  it,  and  for  want  of  such  payment 
the  record  shall  not  have  been  printed  when  a  case  is  reached  in  the 
regular  call  of  the  docket,  after  March  1,  1884,  the  case  shall  be  dis- 
missed. 

3.  Upon  payment  by  either  party  of  the  amount  estimated  by  the 
clerk,  twenty-five  copies  of  the  record  shall  be  printed,  under  his 
supervision,  for  the  use  of  the  court  and  of  counsel. 

4.  In  cases  of  appellate  jurisdiction  the  original  transcript  on  file 
shall  be  taken  by  the  clerk  to  the  printer.  But  the  clerk  shall  cause 
copies  to  be  made  for  the  printer  of  such  original  papers,  sent  up 
under  Rule  8,  section  4,  as  are  necessary  to  be  printed;  and  of  the 
whole  record  in  cases  of  original  jurisdiction. 

5.  The  clerk  shall  supervise  the  printing,  and  see  that  the  printed 
copy  is  properly  indexed.  He  shall  distribute  the  printed  copies  to 
the  justices  and  the  reporter,  from  time  to  time,  as  required,  and  a 
copy  to  the  counsel  for  the  respective  parties. 

6.  If  the  actual  cost  of  printing  the  record,  together  with  the  fee 
of  the  clerk,  shall  be  less  than  the  amount  estimated  and  paid,  the 
amount  of  the  difference  shall  be  refunded  by  the  clerk  to  the  party 
paying  it.  If  the  actual  cost  and  clerk's  fee  shall  exceed  the  esti- 
mate, the  amount  of  the  excess  shall  be  paid  to  the  clerk  before  the 
delivery  of  a  printed  copy  to  either  party  or  his  counsel. 

7.  In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the 
amount  of  the  cost  of  printing  the  record  and  of  the  clerk's  fee  shall 
be  taxed  against  the  party  against  whom  costs  are  given,  and  shall  be 
inserted  in  the  body  of  the  mandate  or  other  proper  process. 

8.  Upon  the  clerk's  producing  satisfactory  evidence,  by  affidavit 
or  the  acknowledgment  of  the  parties  or  their  sureties,  of  having 
served  a  copy  of  the  bill  of  fees  due  by  them,  respectively,  in  this 
court,  on  such  parties  or  their  sureties,  an  attachment  shall  issue 
against  such  parties  or  sureties,  respectively,  to  compel  payment  of 
said  fees. 

9.  The  plaintiff  in  error  or  appellant  may,  within  ninety  days  after 
filing  the  record  in  this  court,  file  with  the  clerk  a  statement  of  the 
errors  on  which  he  intends  to  rely,  and  of  the  parts  of  the  record 
which  he  thinks  necessary  for  the  consideration  thereof,  and  forth- 
with serve  on  the  adverse  party  a  copy  of  such  statement.  The  ad- 
verse party,  within  ninety  days  thereafter,  may  designate  in  writing, 
filed  with  the  clerk,  additional  parts  of  the  record  which  he  thinks 
material;  and,  if  he  shall  not  do  so,  he  shall  be  held  to  have  consent- 
ed to  a  hearing  on  the  parts  designated  by  the  plaintiff  in  error  or 


RULES    OF    SUPREME    COURT    OF    UNITED    STATES.  533 

appellant.  If  parts  of  the  record  shall  be  so  designated  by  one  or 
both  of  the  parties,  the  clerk  shall  print  those  parts  only;  and  the 
court  will  consider  nothing  but  those  parts  of  the  record,  and  the 
errors  so  stated.  If  at  the  hearing  it  shall  appear  that  any  material 
part  of  the  record  has  not  been  printed,  the  writ  of  error  or  appeal 
may  be  dismissed,  or  such  other  order  made  as  the  circumstances 
may  appear  to  the  court  to  require.  If  the  defendant  in  error  or 
appellee  shall  have  caused  unnecessary  parts  of  the  record  to  be 
printed,  such  order  as  to  costs  may  be  made  as  the  court  shall  think 
proper. 

The  fees  of  the  clerk  under  Rule  24,  section  7,  shall  be  computed, 
as  at  present,  on  the  folios  in  the  record  as  filed,  and  shall  be  in  full 
for  the  performance  of  his  duties  in  the  execution  hereof. 

11. 

TRANSLATIONS, 

Whenever  any  record  transmitted  to  this  court  upon  a  writ  of  error 
or  appeal  shall  contain  any  document,  paper,  testimony,  or  other 
proceedings  in  a  foreign  language,  and  the  record  does  not  also  con- 
tain a  translation  of  such  document,  paper,  testimony,  or  other  pro- 
ceeding, made  under  the  authority  of  the  inferior  court,  or  admitted 
to  be  correct,  the  record  shall  not  be  printed;  but  the  case  shall  be 
reported  to  this  court  by  the  clerk,  and  the  court  will  thereupon  re- 
mand it  to  the  inferior  court,  in  order  that  a  translation  may  be 
there  supplied  and  inserted  in  the  record. 

12. 

FURTHER  PROOF. 

1.  In  all  cases  where  further  proof  is  ordered  by  the  court,  the 
depositions  which  may  be  taken  shall  be  by  a  commission,  to  be  is- 
sued from  this  court,  or  from  any  circuit  court  of  the  United  States. 

2.  In  all  cases  of  admiralty  and  maritime  jurisdiction,  where  new 
evidence  shall  be  admissible  in  this  court,  the  evidence  by  testimony 
of  witnesses  shall  be  taken  under  a  commission  to  be  issued  from  this 
court,  or  from  any  circuit  court  of  the  United  States,  under  the  direc- 
tion of  any  judge  thereof;  and  no  such  commission  shall  issue  but 
upon  interrogatories,  to  be  filed  by  the  party  applying  for  the  com- 
mission, and  notice  to  the  opposite  party  or  his  agent  or  attorney, 
accompanied  with  a  copy  of  the  interrogatories  so  filed,  to  file  cross- 
interrogatories  within  twenty  days  from  the  service  of  such  notice: 
Provided,  however,  That  nothing  in  this  rule  shall  prevent  any  party 


534  APPENDIX. 

from  giving  oral  testimony  In  open  court  In  cases  where  by  law  It  is 
admissible. 

13. 

OBJECTIONS  TO  EVIDENCE  IN  THE  RECORD. 

In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this  court, 
no  objection  shall  hereafter  be  allowed  to  be  taken  to  the  admissi- 
bility of  any  deposition,  deed,  grant,  or  other  exhibit  found  in  the 
record  as  evidence,  unless  objection  was  taken  thereto  in  the  court 
below  and  entered  of  record;  but  the  same  shall  otherwise  be  deemed 
to  have  been  admitted  by  consent 

14. 

CERTIORARI. 

No  certiorari  for  diminution  of  the  record  will  be  hereafter  award- 
ed in  any  case,  unless  a  motion  therefor  shall  be  made  in  writing, 
and  the  facts  on  which  the  same  is  founded  shall,  if  not  admitted  by 
the  other  party,  be  verified  by  affidavit.  And  all  motions  for  cer- 
tiorari must  be  made  at  the  first  term  of  the  entry  of  the  case;  other- 
wise, the  same  will  not  be  granted,  unless  upon  special  cause  shown 
to  the  court,  accounting  satisfactorily  for  the  delay. 

15. 

DEATH  OF  A  PARTY. 

1.  Whenever,  pending  a  writ  of  error  or  appeal  in  this  court,  either 
party  shall  die,  the  proper  representatives  in  the  personalty  or  realty 
of  the  deceased  party,  according  to  the  nature  of  the  case,  may  vol- 
untarily come  in  and  be  admitted  parties  to  the  suit,  and  thereupon 
the  case  shall  be  heard  and  determined  as  in  other  cases;  and  if  such 
representatives  shall  not  voluntarily  become  parties,  then  the  other 
party  may  suggest  the  death  on  the  record,  and  thereupon,  on  motion, 
obtain  an  order  that  unless  such  representatives  shall  become  parties 
within  the  first  ten  days  of  the  ensuing  term,  the  party  moving  for 
such  order,  if  defendant  in  error,  shall  be  entitled  to  have  the  writ 
of  error  or  appeal  dismissed;  and  if  the  party  so  moving  shall  be 
plaintiff  in  error,  he  shall  be  entitled  to  open  the  record,  and  on  hear- 
ing have  the  judgment  or  decree  reversed,  if  it  be  erroneous:  Pro- 
vided, however,  That  a  copy  of  every  such  order  shall  be  printed  in 
some  newspaper  of  general  circulation  within  the  State,  Territory, 
or  District  from  which  the  case  is  brought,  for  three  successive 
weeks,  at  least  sixty  days  before  the  beginning  of  the  term  of  the 
Supreme  Court  then  next  ensuing. 


RULES    OF    SUPREME    COURT    OF    UNITED    STATES.  535 

2.  When  the  death  of  a  party  is  suggested,  and  the  representatives 
of  the  deceased  do  not  appear  by  the  tenth  day  of  the  second  term 
next  succeeding  the  suggestion,  and  no  measures  are  taken  by  the 
opposite  party  within  that  time  to  compel  their  appearance,  the  case 
shall  abate. 

3.  When  either  party  to  a  suit  in  a  circuit  court  of  the  United 
States  shall  desire  to  prosecute  a  writ  of  error  or  appeal  to  the  Su- 
preme Court  of  the  United  States,  from  any  final  judgment  or  decree, 
rendered  in  the  circuit  court,  and  at  the  time  of  suing  out  such  writ 
of  error  or  appeal  the  other  party  to  the  suit  shall  be  dead  and  have 
no  proper  representative  within  the  jurisdiction  of  the  court  which 
rendered  such  final  judgment  or  decree,  so  that  the  suit  can  not  be 
revived  in  that  court,  but  shall  have  a  proper  representative  in  some 
State  or  Territory  of  the  United  States,  the  party  desiring  such  writ 
of  error  or  appeal  may  procure  the  same,  and  may  have  proceedings 
on  such  judgment  or  decree  superseded  or  stayed  in  the  same  manner 
as  is  now  allowed  by  law  in  other  cases,  and  shall  thereupon  pro- 
ceed with  such  writ  of  error  or  appeal  as  in  other  cases.  And  within 
thirty  days  after  the  commencement  of  the  term  to  which  such  writ 
of  error  or  appeal  is  returnable,  the  plaintiff  in  error  or  appellant 
shall  make  a  suggestion  to  the  court,  supported  by  affidavit,  that  the 
said  party  was  dead  when  the  writ  of  error  or  appeal  was  taken  or 
sued  out,  and  had  no  proper  representative  within  the  jurisdiction 
of  the  court  which  rendered  said  judgment  or  decree,  so  that  the 
suit  could  not  be  revived  in  that  court,  and  that  said  party  had  a 
proper  representative  in  some  State  or  Territory  of  the  United  States, 
and  stating  therein  the  name  and  character  of  such  representative, 
and  the  State  or  Territory  in  which  such  representative  resides; 
and,  upon  such  suggestion,  he  may,  on  motion,  obtain  an  order  that, 
unless  such  representative  shall  make  himself  a  party  within  the 
first  ten  days  of  the  ensuing  term  of  the  court,  the  plaintiff  in  error 
or  appellant  shall  be  entitled  to  open  the  record,  and,  on  hearing, 
have  the  judgment  or  decree  reversed,  if  the  same  be  erroneous: 
Provided,  however,  That  a  proper  citation  reciting  the  substance  of 
such  order  shall  be  served  upon  such  representative,  either  personally 
or  by  being  left  at  his  residence,  at  least  sixty  days  before  the  be- 
ginning of  the  term  of  the  Supreme  Court  then  next  ensuing:  And 
provided,  also,  That  in  every  such  case  if  the  representative  of  the 
deceased  party  does  not  appear  by  the  tenth  day  of  the  term  next 
succeeding  said  suggestion,  and  the  measures  above  provided  to  com- 
pel the  appearance  of  such  representative  have  not  been  taken  within 
time  as  above  required,  by  the  opposite  party,  the  case  shall  abate: 
And  provided,  also,  That  the  said  representative  may  at  any  time 
before  or  after  said  suggestion  come  in  and  be  made  a  party  to  the 


536  APPENDIX. 

suit,  and  thereupon  the  case  shall  proceed,  and  be  heard  and  deter- 
mined as  in  other  cases. 

16. 

NO  APPEARANCE  OF  PLAINTIFF. 

Where  no  counsel  appears  and  no  brief  has  been  filed  for  the  plain- 
tiff in  error  or  appellant,  when  the  case  is  called  for  trial,  the  de- 
fendant may  have  the  plaintiff  called  and  the  writ  of  error  or  appeal 
dismissed,  or  may  open  the  record  and  pray  for  an  affirmance. 

17. 

NO  APPEARANCE  OF  DEFENDANT. 

Where  the  defendant  fails  to  appear  when  the  case  is  called  for 
trial,  the  court  may  proceed  to  hear  an  argument  on  the  part  of  the 
plaintiff  and  to  give  judgment  according  to  the  right  of  the  case. 

18. 

NO  APPEARANCE  OF  EITHER  PARTY. 

When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  there 
Is  no  appearance  for  either  party,  the  case  shall  be  dismissed  at  the 
cost  of  the  plaintiff. 

19. 

NEITHER  PARTY  READY  AT  SECOND  TERM. 

When  a  case  is  called  for  argument  at  two  successive  terms,  and 
upon  the  call  at  the  second  term  neither  party  is  prepared  to  argue  it, 
it  shall  be  dismissed  at  the  cost  of  the  plaintiff,  unless  sufficient  cause 
is  shown  for  further  postponement 

20. 

PRINTED  ARGUMENTS. 

1.  In  all  cases  brought  here  on  writ  of  error,  appeal,  or  otherwise, 
the  court  will  receive  printed  arguments  without  regard  to  the  num- 
ber of  the  case  on  the  docket,  if  the  counsel  on  both  sides  shall  choose 
to  submit  the  same  within  the  first  ninety  days  of  the  term;  and, 
in  addition,  appeals  from  the  Court  of  Claims  may  be  submitted  by 
both  parties  within  thirty  days  after  they  are  docketed,  but  not  after 
the  first  day  of  April;  but  twenty-five  copies  of  the  arguments,  signed 
by  attorneys  or  counsellors  of  this  court,  must  be  first  filed. 

2.  When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  a 


RULES  OF  SUPREME  COURT  OF  UNITED  STATES.    537 

printed  argument  shall  be  filed  for  one  or  both  parties,  the  case  shall 
stand  on  the  same  footing  as  if  there  were  an  appearance  by  counsel. 

3.  When  a  case  is  taken  up  for  trial  upon  the  regular  call  of  the 
docket,  and  argued  orally  in  behalf  of  only  one  of  the  parties,  no 
printed  argument  for  the  opposite  party  will  be  received,  unless  it 
is  filed  before  the  oral  argument  begins,  and  the  court  will  proceed 
to  consider  and  decide  the  case  upon  the  ex  parte  argument. 

4.  No  brief  or  argument  will  be  received,  either  through  the  clerk 
or  otherwise,  after  a  case  has  been  argued  or  submitted,  except  upon 
leave  granted  in  open  court  after  notice  to  opposing  counsel. 

21. 

BRIEFS. 

1.  The  counsel  for  plaintiff  in  error  or  appellant  shall  file  with  the 
clerk  of  the  court,  at  least  six  days  before  the  case  is  called  for  argu- 
ment, twenty-five  copies  of  a  printed  brief,  one  of  which  shall,  on 
application,  be  furnished  to  each  of  the  counsel  engaged  upon  the  op- 
posite side. 

2.  This  brief  shall  contain,  in  the  order  here  stated — 

(1.)  A  concise  abstract,  or  statement  of  the  case,  presenting  suc- 
cinctly the  questions  involved  and  the  manner  in  which  they  are 
raised. 

(2.)  A  specification  of  the  errors  relied  upon,  which,  in  cases 
brought  up  by  writ  of  error,  shall  set  out  separately  and  particularly 
each  error  asserted  and  intended  to  be  urged;  and  in  cases  brought 
up  by  appeal  the  specification  shall  state,  as  particularly  as  may  be, 
in  what  the  decree  is  alleged  to  be  erroneous.  When  the  error  al- 
leged is  to  the  admission  or  to  the  rejection  of  evidence,  the  specifica- 
tion shall  quote  the  full  substance  of  the  evidence  admitted  or  re- 
jected. When  the  error  alleged  is  to  the  charge  of  the  court,  the 
specification  shall  set  out  the  part  referred  to  totidem  verbis,  whether 
it  be  instructions  given  or  instructions  refused.  When  the  error 
alleged  is  to  a  ruling  upon  the  report  of  a  master,  the  specification 
shall  state  the  exception  to  the  report  and  the  action  of  the  court 
upon  it. 

(3.)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the 
points  of  law  or  fact  to  be  discussed,  with  a  reference  to  the  pages 
of  the  record  and  the  authorities  relied  upon  in  support  of  each 
point.  When  a  statute  of  a  State  is  cited,  so  much  thereof  as  may 
be  deemed  necessary  to  the  decision  of  the  case  shall  be  printed  at 
length. 

3.  The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file 
with  the  clerk  twenty-five  printed  copies  of  his  argument,  at  least 


538  APPENDIX. 

three  days  before  the  case  Is  called  for  hearing.  His  brief  shall  be 
of  like  character  with  that  required  of  the  plaintiff  in  error  or  ap- 
pellant, except  that  no  specification  of  errors  shall  be  required,  and 
no  statement  of  the  case,  unless  that  presented  by  the  plaintiff  in 
error  or  appellant  is  controverted. 

4.  When  there  is  no  assignment  of  errors,  as  required  by  section 
997  of  the  Revised  Statutes,  counsel  will  not  be  heard,  except  at  the 
request  of  the  court;  and  errors  not  specified  according  to  this  rule 
will  be  disregarded;  but  the  court,  at  its  option,  may  notice  a  plain 
error  not  assigned  or  specified. 

5.  When,  according  to  this  rule,  a  plaintiff  in  error  or  an  appel- 
lant is  in  default,  the  case  may  be  dismissed  on  motion;  and  when  a 
defendant  in  error  or  an  appellee  is  in  default,  he  will  not  be  heard, 
except  on  consent  of  his  adversary,  and  by  request  of  the  court. 

6.  When  no  oral  argument  is  made  for  one  of  the  parties,  only  one 
counsel  will  be  heard  for  the  adverse  party. 

22. 

ORAL  ARGUMENTS. 

1.  The  plaintiff  or  appellant  in  this  court  shall  be  entitled  to  open 
and  conclude  the  argument  of  the  case.  But  when  there  are  cross- 
appeals  they  shall  be  argued  together  as  one  case,  and  the  plaintiff 
in  the  court  below  shall  be  entitled  to  open  and  conclude  the  argu- 
ment. 

2.  Only  two  counsel  will  be  heard  for  each  party  on  the  argument 
of  a  case. 

3.  Two  hours  on  each  side  will  be  allowed  for  the  argument,  and 
no  more,  without  special  leave  of  the  court,  granted  before  the  argu- 
ment begins.  The  time  thus  allowed  may  be  apportioned  between 
the  counsel  on  the  same  side,  at  their  discretion:  Provided,  always, 
That  a  fair  opening  of  the  case  shall  be  made  by  the  party  having 
the  opening  and  closing  arguments. 

23. 

INTEREST. 

1.  In  cases  where  a  writ  of  error  is  prosecuted  to  this  court,  and 
the  judgment  of  the  inferior  court  is  affirmed,  the  interest  shall  be 
calculated  and  levied,  from  the  date  of  the  judgment  below  until  the 
same  is  paid,  at  the  same  rate  that  similar  judgments  bear  interest 
in  the  courts  of  the  State  where  such  judgment  is  rendered. 

2.  In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings 
on  the  judgment  of  the  inferior  court,  and  shall  appear  to  have  been 


RULES    OF    SUPREME    COURT    OP    UNITED    STATES.  539 

sued  out  merely  for  delay,  damages  at  a  rate  uot  exceeding  10  per 
cent.,  in  addition  to  interest,  shall  be  awarded  upon  the  amount  of 
the  judgment. 

3.  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of 
money  in  cases  in  equity,  unless  otherwise  ordered  by  this  court. 

4.  In  cases  in  admiralty,  damages  and  interest  may  be  allowed  if 
specially  directed  by  the  court. 

24. 

COSTS. 

1.  In  all  cases  where  any  suit  shall  be  dismissed  In  this  court, 
except  where  the  dismissal  shall  be  for  want  of  jurisdiction,  costs 
shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless  other- 
wise agreed  by  the  parties. 

2.  In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this 
court,  costs  shall  be  allowed  to  the  defendant  in  error  or  appellee,  un- 
less otherwise  ordered  by  the  court. 

3.  In  cases  of  reversal  of  any  judgment  or  decree  in  this  court, 
costs  shall  be  allowed  to  the  plaintiff  in  error  or  appellant,  unless 
otherwise  ordered  by  the  court.  The  cost  of  the  transcript  of  the 
record  from  the  court  below  shall  be  a  part  of  such  costs,  and  be 
taxable  in  that  court  as  costs  in  the  case. 

4.  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the 
United  States  are  a  party;  but  in  such  cases  no  costs  shall  be  allowed 
in  this  court  for  or  against  the  United  States. 

5.  In  all  cases  of  the  dismissal  of  any  suit  in  this  court,  it  shall  be 
the  duty  of  the  clerk  to  issue  a  mandate,  or  other  proper  process,  in 
the  nature  of  a  procedendo,  to  the  court  below,  for  the  purpose  of 
informing  such  court  of  the  proceedings  in  this  court,  so  that  further 
proceedings  may  be  had  in  such  court  as  to  law  and  justice  may 
appertain. 

6.  When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the 
clerk  to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or 
other  proper  process,  sent  to  the  court  below,  and  annex  to  the  same 
the  bill  of  items  taxed  in  detail. 

7.  In  pursuance  of  the  Act  of  March  3,  18S3,  authorizing  and  em- 
powering this  court  to  prepare  a  table  of  fees  to  be  charged  by  the 
clerk  of  this  court,  the  following  table  Is  adopted: 

For  docketing  a  case  and  filing  and  indorsing  the  transcript  of  the 
record,  five  dollars. 
For  entering  an  appearance,  twenty-five  cents. 
For  entering  a  continuance,  twenty-five  cents. 


540  APPENDIX. 

For  filing  a  motion,  order,  or  other  paper,  twenty-five  cents. 

For  entering  any  rule,  or  for  making  or  copying  any  record  or 
other  paper,  twenty  cents  per  folio  of  each  one  hundred  words. 

For  transferring  each  case  to  a  subsequent  docket  and  indexing 
the  same,  one  dollar. 

For  entering  a  judgment  or  decree,  one  dollar. 

For  every  search  of  the  records  of  the  court,  one  dollar. 

For  a  certificate  and  seal,  two  dollars. 

For  receiving,  keeping,  and  paying  money  in  pursuance  of  any  stat- 
ute or  order  of  court,  two  per  cent,  on  the  amount  so  received,  kept, 
and  paid. 

For  an  admission  to  the  bar  and  certificate  under  seal,  ten  dollars. 

For  preparing  the  record  or  a  transcript  thereof  for  the  printer, 
indexing  the  same,  supervising  the  printing  and  distributing  the 
printed  copies  to  the  justices,  the  reporter,  the  law  library,  and  the 
parties  or  their  counsel,  fifteen  cents  per  folio. 

For  making  a  manuscript  copy  of  the  record,  when  required  under 
Rule  10,  twenty  cents  per  folio,  but  nothing  in  addition  for  supervis- 
ing the  printing. 

For  issuing  a  writ  of  error  and  accompanying  papers,  five  dollars. 

For  a  mandate  or  other  process,  five  dollars. 

For  filing  briefs,  five  dollars  for  each  party  appearing. 

For  every  copy  of  any  opinion  of  the  court  or  any  justice  thereof, 
certified  under  seal,  one  dollar  for  every  printed  page,  but  not  to 
exceed  five  dollars  in  the  whole  for  any  copy. 

25. 

OPINIONS  OF  THE  COURT. 

1.  All  opinions  delivered  by  the  court  shall,  immediately  upon  the 
delivery  thereof,  be  handed  to  the  clerk  to  be  recorded.  And  it  shall 
be  the  duty  of  the  clerk  to  cause  the  same  to  be  forthwith  recorded, 
and  to  deliver  a  copy  to  the  reporter  as  soon  as  the  same  shall  be 
recorded. 

2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk 
of  this  court  for  preservation. 

3.  Opinions  printed  under  the  supervision  of  the  justices  delivering 
the  same  need  not  be  copied  by  the  clerk  into  a  book  of  records;  but 
at  the  end  of  each  term  the  clerk  shall  cause  such  printed  opinions. 
to  be  bound  in  a  substantial  manner  into  one  or  more  volumes,  and 
when  so  bound  they  shall  be  deemed  to  have  been  recorded  withiu  the 
meaning  of  this  rule. 


RULES  OF  SUPREME  COURT  OF  UNITED  STATES.    541 


26. 

CALL  AND  ORDER  OF  THE  DOCKET. 

1.  The  court,  on  the  second  day  in  each  term,  will  commence  call- 
ing the  cases  for  argument  in  the  order  in  which  they  stand  on  the 
docket,  and  proceed  from  day  to  day  during  the  term  in  the  same 
order  (except  as  hereinafter  provided) ;  and  if  the  parties,  or  either 
of  them,  shall  be  ready  when  the  case  is  called,  the  same  will  be 
heard;  and  if  neither  party  shall  be  ready  to  proceed  in  the  argu- 
ment, the  case  shall  go  down  to  the  foot  of  the  docket,  unless  some 
good  and  satisfactory  reason  to  the  contrary  shall  be  shown  to  the 
court. 

2.  Ten  cases  only  shall  be  considered  as  liable  to  be  called  on  each 
clay  during  the  term.  But  on  the  coming  in  of  the  court  on  each  day 
the  entire  number  of  such  ten  cases  will  be  called,  with  a  view  to  the 
disposition  of  suqh  of  them  as  are  not  to  be  argued. 

3.  Criminal  cases  may  be  advanced  by  leave  of  the  court  on  motion 
of  either  party. 

4.  Cases  once  adjudicated  by  this  court  upon  the  merits,  and  again 
brought  up  by  writ  of  error  or  appeal,  may  be  advanced  by  leave  of 
the  court  on  motion  of  either  party. 

5.  Revenue  and  other  cases  in  which  the  United  States  are  con- 
cerned, which  also  involve  or  affect  some  matter  of  general  public 
interest,  may  also  by  leave  of  the  court  be  advanced  on  motion  of  the 
Attorney-General. 

6.  All  motions  to  advance  cases  must  be  printed,  and  must  contain 
a  brief  statement  of  the  matter  involved,  with  the  reasons  for  the 
application. 

7.  No  other  case  will  be  taken  up  out  of  the  order  on  the  docket,  or 
be  set  down  for  any  particular  day,  except  under  special  and  peculiar 
circumstances  to  be  shown  to  the  court.  Every  case  which  shall  have 
been  called  in  its  order  and  passed  and  put  at  the  foot  of  the  docket 
shall,  if  not  again  reached  during  the  term  it  was  called,  be  continued 
to  the  next  term  of  the  court. 

8.  Two  or  more  cases,  involving  the  same  question,  may,  by  the 
leave  of  the  court,  be  heard  together,  but  they  must  be  argued  as  one 
case. 

9.  If,  after  a  case  has  been  passed  under  circumstances  which  do 
not  place  it  at  the  foot  of  the  docket,  the  parties  shall  desire  to  have 
it  heard,  they  may  file  with  the  clerk  their  joint  request  to  that 
effect,  and  the  case  shall  then  be  by  him  reinstated  for  call  ten  cases 
after  that  under  argument,  or  next  to  be  called  at  the  end  of  the  day 
the  request  is  filed.     If  the  parties  will  not  unite  in  such  a  request, 


542  APPENDIX. 

either  may  move  to  take  up  the  ease,  and  It  shall  then  be  assigned  to 
such  place  upon  the  docket  as  the  court  may  direct 

10.  No  stipulation  to  pass  a  case  without  placing  it  at  the  foot  of 
the  docket  will  be  recognized  as  binding  upon  the  court  A  case  can 
only  be  so  passed  upon  application  made  and  leave  granted  in  open 
court 

27. 

ADJOURNMENT. 

The  court  will,  at  every  term,  announce  on  what  day  it  will  adjourn 
at  least  ten  days  before  the  time  which  shall  be  fixed  upon,  and  the 
court  will  take  up  no  case  for  argument,  nor  receive  any  case  upon 
printed  briefs,  within  three  days  next  before  the  day  fixed  upon  for 
adjournment. 

28. 

DISMISSING  CASES  IN  VACATION. 

Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending 
in  this  court,  or  the  appellant  and  appellee  in  an  appeal,  shall  in 
vacation,  by  their  attorneys  of  record,  sign  and  file  with  the  clerk  an 
agreement  in  writing  directing  the  case  to  be  dismissed,  and  specify- 
ing the  terms  on  which  it  is  to  be  dismissed  as  to  costs,  and  shall  pay 
to  the  clerk  any  fees  that  may  be  due  to  him,  it  shall  be  the  duty  of 
the  clerk  to  enter  the  case  dismissed,  and  to  give  to  either  party  re- 
questing it  a  copy  of  the  agreement  filed;  but  no  mandate  or  other 
process  shall  issue  without  an  order  of  the  court 

29. 

SUPERSEDEAS. 

Supersedeas  bonds  In  the  circuit  courts  must  be  taken,  with  good 
and  sufficient  security,  that  the  plaintiff  in  error  or  appellant  shall 
prosecute  his  writ  or  appeal  to  effect,  and  answer  all  damages  and 
costs  if  he  fail  to  make  his  plea  good.  Such  indemnity,  where  the 
judgment  or  decree  is  for  the  recovery  of  money  not  otherwise  se- 
cured, must  be  for  the  whole  amount  of  the  judgment  or  decree,  in- 
cluding just  damages  for  delay,  and  costs  and  interest  on  the  appeal; 
but  in  all  suits  where  the  property  in  controversy  necessarily  fol- 
lows the  event  of  the  suit,  as  in  real  actions,  replevin,  and  in  suits 
on  mortgages,  or  where  the  property  is  in  the  custody  of  the  marshal 
under  admiralty  process,  as  in  case  of  capture  or  seizure,  or  where 
the  proceeds  thereof,  or  a  bond  for  the  value  thereof,  is  in  the  custody 
or  control  of  the  court,  indemnity  in  all  such  cases  is  only  required 
in  an  amount  sufficient  to  secure  the  sum  recovered  for  the  use  and 


RULES  OF  SUPREME  COURT  OF  UNITED  STATES.    543 

detention  of  the  property,  and  the  costs  of  the  suit,  and  just  dam- 
ages for  delay,  and  costs  and  interest  on  the  appeal. 

30. 

REHEARING. 

A  petition  for  rehearing  after  judgment  can  be  presented  only  at 
the  term  at  which  judgment  is  entered,  unless  by  special  leave  grant- 
ed during  the  term;  and  must  be  printed  and  briefly  and  distinctly 
state  its  grounds,  and  be  supported  by  certificate  of  counsel;  and  will 
not  be  granted,  or  permitted  to  be  argued,  unless  a  justice  who  con- 
curred in  the  judgment  desires  it,  and  a  majority  of  the  court  so  de- 
termines. 

31. 

FORM  OF  PRINTED  RECORDS  AND  BRIEFS. 
All  records,  arguments,  and  briefs,  printed  for  the  use  of  the 
court,  must  be  in  such  form  and  size  that  they  can  be  conveniently 
bound  together,  so  as  to  make  an  ordinary  octavo  volume;  and,  as 
well  as  all  quotations  contained  therein,  and  the  covers  thereof,  must 
be  printed  in  clear  type  (never  smaller  than  small  pica)  and  on  un- 
glazed  paper. 

32. 

WRITS  OF  ERROR  AND  APPEALS  UNDER  THE  ACT  OF  FEB- 
RUARY 25,  1889,  CHAPTER  236,  OR  UNDER  SECTION  5  OF 
THE  ACT  OF  MARCH  3,  1891,  CHAPTER  517. 

Cases  brought  to  this  court  by  writ  of  error  or  appeal,  under  the 
act  of  February  25,  1889,  chapter  236,  or  under  section  5  of  the  act 
of  March  3,  1891,  chapter  517,  where  the  only  question  in  issue  is 
the  question  of  the  jurisdiction  of  the  court  below,  will  be  advanced 
on  motion,  and  heard  under  the  rules  prescribed  by  rule  6,  in  regard 
to  motions  to  dismiss  writs  of  error  and  appeals. 

33. 

MODELS,   DIAGRAMS,  AND   EXHIBITS  OF  MATERIALS. 

1.  Models,  diagrams,  and  exhibits  of  material  forming  part  of  the 
evidence  taken  in  the  court  below,  in  any  case  pending  in  this  court, 
on  writ  of  error  or  appeal,  shall  be  placed  in  the  custody  of  the  mar- 
shal of  this  court  at  least  one  month  before  the  case  is  heard  or 
submitted. 

2.  All  models,  diagrams,  and  exhibits  of  material,  placed  in  the 
custody  of  the  marshal  for  the  inspection  of  the  court  on  the  hearing 


544  appendix. 

of  a  case,  must  be  taken  away  by  the  parties  within  one  month  after 
the  case  is  decided.  When  this  is  not  done,  it  shall  be  the  duty  of 
the  marshal  to  notify  the  counsel  in  the  case,  by  mail  or  otherwise, 
of  the  requirements  of  this  rule;  and  if  the  articles  are  not  removed 
within  a  reasonable  time  after  the  notice  is  given,  he  shall  destroy 
them,  or  make  such  other  disposition  of  them  as  to  him  may  seem 
best 

34. 

CUSTODY  OF  PRISONERS  ON  HABEAS  CORPUS. 

1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
declining  to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  pris- 
oner shall  not  be  disturbed. 

2.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  writ  after  it  has  been  issued,  the  prisoner  shall  be 
remanded  to  the  custody  from  which  he  was  taken  by  the  writ,  or 
shall,  for  good  cause  shown,  be  detained  in  custody  of  the  court  or 
judge,  or  be  enlarged  upon  recognizance  as  hereinafter  provided. 

3.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge 
discharging  the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with 
surety,  for  appearance  to  answer  the  judgment  of  the  appellate 
court,  except  where,  for  special  reasons,  sureties  ought  not  to  be 
required. 

35. 

ASSIGNMENT  OF  ERRORS. 
1.  Where  an  appeal  or  a  writ  of  error  is  taken  from  a  district 
court  or  a  circuit  court  direct  to  this  court,  under  section  5  of  the 
act  entitled  "An  act  to  establish  circuit  courts  of  appeals  and  to  de- 
fine and  regulate  in  certain  cases  the  jurisdiction  of  the  courts  of 
the  United  States,  and  for  other  purposes,"  approved  March  3,  1891, 
the  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of  the  court 
below,  with  his  petition  for  the  writ  of  error  or  appeal,  an  assign- 
ment of  errors,  which  shall  set  out  separately  and  particularly  each 
error  asserted  and  intended  to  be  urged.  No  writ  of  error  or  appeal 
shall  be  allowed  until  such  assignment  of  errors  shall  have  been 
filed.  When  the  error  alleged  is  to  the  admission  or  to  the  rejection 
of  evidence,  the  assignment  of  errors  shall  quote  the  full  substance 
of  the  evidence  admitted  or  rejected.  When  the  error  alleged  is  to 
the  charge  of  the  court,  the  assignment  of  errors  shall  set  out  the 
part  referred  to  totidem  verbis,  whether  it  be  in  instructions  given  or 
in  instructions  refused.  Such  assignment  of  errors  shall  form  part  of 
the  transcript  of  the  record,  and  be  printed  with  it.  When  this  is 
not  done  counsel  will  not  be  heard,  except  at  the  request  of  the  court; 


RULES    OF    SUPREME    COURT    OF    UNITED    STATES.  545 

and  errors  not  assigned  according  to  this  rule  will  be  disregarded, 
but  tbe  court,  at  its  option,  may  notice  a  plain  error  not  assigned. 

2.  Tbe  plaintiff  in  error  or  appellant  sball  cause  the  record  to  be 
printed,  according  to  tbe  provisions  of  sections  2,  3,  4,  5,  6,  and  9 
of  Rule  10. 

36. 

APPEALS  AND  WRITS  OF  ERROR. 

1.  An  appeal  or  a  writ  of  error  from  a  circuit  court  or  a  district 
court  direct  to  this  court,  in  the  cases  provided  for  in  sections  5  and 
6  of  the  act  entitled  "An  act  to  establish  circuit  courts  of  appeals, 
and  to  define  and  regulate  in  certain  cases  the  jurisdiction  of  the 
courts  of  the  United  States,  and  for  other  purposes,"  approved  March 
3,  1891,  may  be  allowed,  in  term  time  or  in  vacation,  by  any  justice 
of  this  court,  or  by  any  circuit  judge  within  his  circuit,  or  by  any 
district  judge  within  his  district,  and  the  proper  security  be  taken 
and  the  citation  signed  by  him,  and  he  may  also  grant  a  supersedeas 
and  stay  of  execution  or  of  proceedings,  pending  such  writ  of  error 
or  appeal. 

2.  Where*  such  writ  of  error  is  allowed  in  the  case  of  a  conviction 
of  an  infamous  crime,  or  in  any  other  criminal  case  in  which  it  will 
lie  under  said  sections  5  and  6,  the  circuit  court  or  district  court,  or 
any  justice  or  judge  thereof,  shall  have  power,  after  the  citation  is 
served,  to  admit  the  accused  to  bail  in  such  amount  as  may  be  fixed. 

37. 

CASES  FROM  CIRCUIT  COURT  OF  APPEALS. 

1.  Where,  under  section  6  of  the  said  act,  a  circuit  court  of  appeals 
shall  certify  to  this  court  a  question  or  proposition  of  law,  concern- 
ing which  it  desires  the  instruction  of  this  court  for  its  proper  deci- 
sion, the  certificate  shall  contain  a  proper  statement  of  the  facts  on 
which  such  question  or  proposition  of  law  arises. 

2.  If  application  is  thereupon  made  to  this  court  that  the  whole 
record  and  cause  may  be  sent  up  to  it  for  its  consideration,  the  party 
making  such  application  shall,  as  a  part  thereof,  furnish  this  court 
with  a  certified  copy  of  the  whole  of  said  record. 

3.  Where  application  is  made  to  this  court  under  section  6  of  the 
said  act  to  require  a  case  to  be  certified  to  it  for  its  review  and 
determination,  a  certified  copy  of  the  entire  record  of  the  case  in  the 
circuit  court  of  appeals  shall  be  furnished  to  this  court  by  the  ap- 
plicant, as  part  of  the  application. 

'    Hughes  Fed.Jue. — 35 


546  APPENDIX, 


38. 


INTEREST,  COSTS,  AND  FEES. 
The  provisions  of  Rules  23  and  24  of  this  court,  in  regard  to  in- 
terest and  costs  and  fees,  shall  apply  to  writs  of  error  and  appeals 
and  reviews  under  the  provisions  of  sections  5  and  6  of  the  said  act. 

39. 

MANDATES. 
Mandates  shall  issue  as  of  course  after  the  expiration  of  thirty 
days  from  the  day  the  judgment  or  decree  is  entered,  unless  the  time 
is  enlarged  by  order  of  the  court,  or  of  a  justice  thereof  when  the 
court  is  not  in  session,  but  during  the  term. 


RULES  OF  PRACTICE  FOR  THE  COURTS 

OF  EQUITY  OF  THE  UNITED 

STATES. 


PRELIMINARY  REGULATIONS. 

1. 

The  circuit  courts,  as  courts  of  equity,  shall  be  deemed  always 
open  for  the  purpose  of  filing  bills,  answers,  and  other  pleadings ; 
for  issuing  and  returning  mesne  and  final  process  and  commissions ; 
and  for  making  and  directing  all  interlocutory  motions,  orders,  rules, 
and  other  proceedings,  preparatory  to  hearing  of  all  causes  upon  their 
merits. 

2. 

The  clerk's  office  shall  be  open,  and  the  clerk  shall  be  in  attendance 
therein,  on  the  first  Monday  of  every  month,  for  the  purpose  of  re- 
ceiving, entering,  entertaining,  and  disposing  of  all  motions,  rules, 
orders,  and  other  proceedings,  which  are  grantable  of  course  and  ap- 
plied for,  or  had  by  the  parties  or  their  solicitors,  in  all  causes  pend- 
ing in  equity,  in  pursuance  of  the  rules  hereby  prescribed. 

3. 

Any  judge  of  the  circuit  court,  as  well  in  vacation  as  in  term,  may, 
at  chambers,  or  on  the  rule-days  at  the  clerk's  office,  make  and  direct 
all  such  interlocutory  orders,  rules,  and  other  proceedings,  prepara- 
tory to  the  hearing  of  all  causes  upon  their  merits  in  the  same  man- 
ner and  with  the  same  effect  as  the  circuit  court  could  make  and  di- 
rect the  same  in  term,  reasonable  notice  of  the  application  therefor 
being  first  given  to  the  adverse  party,  or  his  solicitor,  to  appear  and 
show  cause  to  the  contrary,  at  the  next  rule-day  thereafter,  unless 
some  other  time  is  assigned  by  the  judge  for  the  hearing. 

4. 

All  motions,  rules,  orders,  and  other  proceedings,  made  and  directed 

at  chambers,  or  on  rule-days  at  the  clerk's  office,  whether  special  or 

of  course,  shall  be  entered  by  the  clerk  in  an  order-book,  to  be  kept 

at  the  clerk's  office,  on  the  day  when  they  are  made  and  directed ; 

Hughes  Fed.Jub.  (547) 


548  APPENDIX. 

which  book  shall  be  open  at  all  office  hours  to  the  free  Inspection  of 
the  parties  in  any  suit  in  equity,  and  their  solicitors.  And,  except 
in  cases  where  personal  or  other  notice  is  specially  required  or  di- 
rected, such  entry  in  the  order-book  shall  be  deemed  sufficient  notice 
to  the  parties  and  their  solicitors,  without  further  service  thereof,  of 
all  orders,  rules,  acts,  notices,  and  other  proceedings  entered  in  such 
order-book,  touching  any  and  all  the  matters  in  the  suits  to  and  in 
which  they  are  parties  and  solicitors.  And  notice  to  the  solicitors 
shall  be  deemed  notice  to  the  parties  for  whom  they  appear  and  whom 
they  represent,  in  all  cases  where  personal  notice  on  the  parties  is 
not  otherwise  specially  required.  Where  the  solicitors  for  all  the 
parties  in  a  suit  reside  in  or  near  the  same  town  or  city,  the  judges 
of  the  circuit  court  may,  by  rule,  abridge  the  time  for  notice  of  rules, 
orders,  or  other  proceedings  not  requiring  personal  service  on  the 
parties,  in  their  discretion. 

5. 

All  motions  and  applications  in  the  clerk's  office  for  the  Issuing 
of  mesne  process  and  final  process  to  enforce  and  execute  decrees ; 
for  filing  bills,  answers,  pleas,  demurrers,  and  other  pleadings ;  for 
making  amendments  to  bills  and  answers ;  for  taking  bills  pro  con- 
fesso  ;  for  filing  exceptions ;  and  for  other  proceedings  in  the  clerk's 
office  which  do  not,  by  the  rules  hereinafter  prescribed,  require  any 
allowance  or  order  of  the  court  or  of  any  judge  thereof,  shall  be 
deemed  motions  and  applications  grantable  of  course  by  the  clerk  of 
the  court.  But  the  same  may  be  suspended,  or  altered,  or  rescinded 
by  any  judge  of  the  court,  upon  special  cause  shown. 

6. 

All  motions  for  rules  or  orders  and  other  proceedings,  which  are 
not  grantable  of  course  or  without  notice,  shall,  unless  a  different 
time  be  assigned  by  a  judge  of  the  court,  be  made  on  a  rule-day,  and 
entered  in  the  order-book,  and  shall  be  heard  at  the  rule-day  next 
after  that  on  which  the  motion  is  made.  And  if  the  adverse  party, 
or  his  solicitor,  shall  not  then  appear,  or  shall  not  show  good  cause 
against  the  same,  the  motion  may  be  heard  by  any  judge  of  the  court 
ex  parte,  and  granted,  as  if  not  objected  to,  or  refused,  in  his  discre- 
tion. 

PROCESS. 

7. 

The  process  of  subpoena  shall  constitute  the  proper  mesne  process 
in  all  suits  in  equity,  in  the  first  instance,  to  require  the  defendant  to 
appear  and  answer  the  exigency  of  the  bill ;    and,  unless  otherwise 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   549 

provided  in  these  rules,  or  specially  ordered  by  the  circuit  court,  a 
writ  of  attachment,  and,  if  the  defendant  can  not  be  found,  a  writ 
of  sequestration,  or  a  writ  of  assistance  to  enforce  a  delivery  of  pos- 
session, as  the  case  may  require,  shall  be  the  proper  process  to  issue 
for  the  purpose  of  compelling  obedience  to  any  interlocutory  or  final 
order  or  decree  of  the  court 

8. 

Final  process  to  execute  any  decree  may,  if  the  decree  be  solely 
for  the  payment  of  money,  be  by  a  writ  of  execution,  in  the  form 
used  in  the  circuit  court  in  suits  at  common  law  in  actions  of  as- 
sumpsit. If  the  decree  be  for  the  performance  of  any  specific  act. 
as,  for  example,  for  the  execution  of  a  conveyance  of  land  or  the 
delivering  up  of  deeds  or  other  documents,  the  decree  shall,  in  all 
cases,  prescribe  the  time  within  which  the  act  shall  be  done,  of  which 
the  defendant  shall  be  bound,  without  further  service,  to  take  notice; 
and  upon  anidavit  of  the  plaintiff,  filed  in  the  clerk's  ofiice,  that  the 
same  has  not  been  complied  with  within  the  prescribed  time,  the  clerk 
shall  issue  a  writ  of  attachment  against  the  delinquent  party,  from 
which,  if  attached  thereon,  he  shall  not  be  discharged,  unless  upon  a 
full  compliance  with  the  decree  and  the  payment  of  all  costs,  or  upon 
a  special  order  of  the  court,  or  of  a  judge  thereof,  upon  motion  and 
aflidavlt,  enlarging  the  time  for  the  performance  thereof.  If  the  de- 
linquent party  can  not  be  found,  a  writ  of  sequestration  shall  issue 
against  his  estate  upon  the  return  of  non  est  inventus,  to  compel 
obedience  to  the  decree. 

9. 

When  any  decree  or  order  is  for  the  delivery  or  possession,  upon 
proof  made  by  affidavit  of  a  demand  and  refusal  to  obey  the  decree 
or  order,  the  party  prosecuting  the  same  shall  be  entitled  to  a  writ 
of  assistance  from  the  clerk  of  the  court. 

10. 

Every  person,  not  being  a  party  in  any  cause,  who  has  obtained  an 
order,  or  in  whose  favor  an  order  shall  have  been  made,  shall  be  en- 
abled to  enforce  obedience  to  such  order  by  the  same  process  as  if 
he  were  a  party  to  the  cause ;  and  every  person,  not  being  a  party 
in  any  cause,  against  whom  obedience  to  any  order  of  the  court  may 
be  enforced,  shall  be  liable  to  the  same  process  for  enforcing  obedi- 
ence to  such  orders  as  if  he  were  a  party  in  the  cause. 


550  APPENDIX. 

SERVICE  OF  PROCESS. 
11. 

No  process  of  subpoena  shall  issue  from  the  clerk's  office  In  any 

suit  in  equity  until  the  bill  is  filed  in  the  office. 

12. 

Whenever  a  bill  is  filed,  the  clerk  shall  issue  the  process  of  sub- 
poena thereon,  as  of  course,  upon  the  application  of  the  plaintiff, 
which  shall  contain  the  Christian  names  as  well  as  the  surnames  of 
the  parties,  and  shall  be  returnable  into  the  clerk's  office  the  next 
rule  day,  or  the  next  rule  day  but  one,  at  the  election  of  the  plaintiff, 
occurring  after  twenty  days  from  the  time  of  the  issuing  thereof.  At 
the  bottom  of  the  subpcena  shall  be  placed  a  memorandum,  that  the 
defendant  is  to  enter  his  appearance  in  the  suit  in 'the  clerk's  office 
on  or  before  the  day  at  which  the  writ  is  returnable ;  otherwise  the 
bill  may  be  taken  pro  confesso.  Where  there  are  more  than  one  de- 
fendant, a  writ  of  subpcena  may,  at  the  election  of  the  plaintiff,  be 
sued  out  separately  for  each  defendant,  except  in  the  case  of  hus- 
band and  wife  defendants,  or  a  joint  subpcena  against  all  the  defend- 
ants. 

13. 

The  service  of  all  subpoenas  shall  be  by  a  delivery  of  a  copy  there- 
of by  the  officer  serving  the  same  to  the  defendant  personally,  or  by 
leaving  a  copy  thereof  at  the  dwelling-house  or  usual  place  of  abode 
of  each  defendant,  with  some  adult  person  who  is  a  member  or  resi- 
dent in  the  family. 

14. 

Whenever  any  subpcena  shall  be  returned  not  executed  as  to  any 
defendant,  the  plaintiff  shall  be  entitled  to  another  subpoena,  toties 
quoties,  against  such  defendant,  if  he  shall  require  it,  until  due  serv- 
ice is  made. 

15. 

The  service  of  all  process,  mesne  and  final,  shall  be  by  the  marshal 
of  the  district,  or  his  deputy,  or  by  some  other  person  specially  ap- 
pointed by  the  court  for  that  purpose,  and  not  otherwise.  In  the 
latter  case,  the  person  serving  the  process  shall  make  affidavit  thereof. 

16. 

Upon  the  return  of  the  subpoena  as  served  and  executed  upon  any 
defendant,  the  clerk  shall  enter  the  suit  upon  his  docket  as  pending 
in  the  court,  and  shall  state  the  time  of  the  entry. 


BULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   551 

APPEARANCE. 
17. 

The  appearance-day  of  the  defendant  shall  be  the  rule-day  to  which 
the  subpoena  Is  made  returnable,  provided  he  has  been  served  with 
the  process  twenty  days  before  that  day ;  otherwise  his  appearance- 
day  shall  be  the  next  rule-day  succeeding  the  rule-day  when  the 
process  is  returnable. 

The  appearance  of  the  defendant,  either  personally  or  by  his  so- 
licitor, shall  be  entered  in  the  order-book  on  the  day  thereof  by  the 
clerk. 

BILLS  TAKEN  PRO  CONFESSO. 

18. 

It  shall  be  the  duty  of  the  defendant,  unless  the  time  shall  be  other- 
wise enlarged,  for  cause  shown,  by  a  judge  of  the  court,  upon  mo- 
tion for  that  purpose,  to  file  his  plea,  demurrer,  or  answer  to  the 
bill,  in  the  clerk's  office,  on  the  rule-day  next  succeeding  that  of  en- 
tering his  appearance.  In  default  thereof,  the  plaintiff  may,  at  his 
election,  enter  an  order  (as  of  course)  in  the  order-book,  that  the  bill 
be  taken  pro  confesso ;  and  thereupon  the  cause  shall  be  proceeded 
in  ex  parte,  and  the  matter  of  the  bill  may  be  decreed  by  the  court 
at  any  time  after  the  expiration  of  thirty  days  from  and  after  the 
entry  of  said  order,  if  the  same  can  be  done  without  an  answer,  and 
is  proper  to  be  decreed ;  or  the  plaintiff,  if  he  requires  any  discovery 
or  answer  to  enable  him  to  obtain  a  proper  decree,  shall  be  entitled 
to  process  of  attachment  against  the  defendant  to  compel  an  answer, 
and  the  defendant  shall  not,  when  arrested  upon  such  process,  be  dis- 
charged therefrom,  unless  upon  filing  his  answer,  or  otherwise  com- 
plying with  such  order  as  the  court  or  a  judge  thereof  may  direct 
as  to  pleading  to  or  fully  answering  the  bill,  within  a  period  to  be 
fixed  by  the  court  or  Judge,  and  undertaking  to  speed  the  cause. 

19. 

When  the  bill  is  taken  pro  confesso  the  court  may  proceed  to  a 
decree  at  any  time  after  the  expiration  of  thirty  days  from  and  after 
the  entry  of  the  order  to  take  the  bill  pro  confesso,  and  such  decree 
rendered  shall  be  deemed  absolute,  unless  the  court  shall,  at  the  same 
term,  set  aside  the  same,  or  enlarge  the  time  for  filing  the  answer, 
upon  cause  shown  upon  motion  and  affidavit  of  the  defendant.  And 
no  such  motion  shall  be  granted,  unless  upon  the  payment  of  the  cost 
of  the  plaintiff  in  the  suit  up  to  tbat  time,  or  such  part  thereof  as 
the  court  shall  deem  reasonable,  and  unless  the  defendant  shall  un- 


552  APPENDIX. 

dertake  to  file  his  answer  within  such  time  as  the  court  shall  direct, 
and  submit  to  such  other  terms  as  the  court  shall  direct,  for  the  pur- 
pose of  speeding  the  cause. 

FRAME  OF  BILLS. 

20. 

Every  bill,  in  the  Introductory  part  thereof,  shall  contain  the 
names,  places  of  abode,  and  citizenship  of  all  the  parties,  plaintiffs 
and  defendants,  by  and  against  whom  the  bill  is  brought.  The  form, 
in  substance,  shall  be  as  follows :     "To  the  judges  of  the  circuit  court 

of  the  United  States  for  the  district  of  :     A.  B.,  of  ,  and 

a  citizen  of  the  State  of  ,  brings  this  his  bill  against  C.  D.,  of 

,  and  a  citizen  of  the  State  of  ,  and  E.  F.,  of  ,  and  a 

citizen  of  the  State  of  .     And  thereupon  your  orator  complains 

and  says  that,"  &c. 

21. 

The  plaintiff,  in  his  bill,  shall  be  at  liberty  to  omit,  at  his  option, 
the  part  which  is  usually  called  the  common  confederacy  clause  of 
the  bill,  averring  a  confederacy  between  the  defendants  to  injure 
or  defraud  the  plaintiff ;  also  what  is  commonly  called  the  charging 
part  of  the  bill,  setting  forth  the  matters  or  excuses  which  the  de- 
fendant is  supposed  to  intend  to  set  up  by  way  of  defense  to  the  bill ; 
also  what  is  commonly  called  the  jurisdiction  clause  of  the  bill,  that 
the  acts  complained  of  are  contrary  to  equity,  and  that  the  defendant 
is  without  any  remedy  at  law ;  and  the  bill  shall  not  be  demurrable 
therefor.  And  the  plaintiff  may,  in  the  narrative  or  stating  part  of 
his  bill,  state  and  avoid,  by  counter-averments,  at  his  option,  any 
matter  or  thing  which  he  supposes  will  be  insisted  upon  by  the  de- 
fendant by  way  of  defense  or  excuse  to  the  case  made  by  the  plain- 
tiff for  relief.  The  prayer  of  the  bill  shall  ask  the  special  relief  to 
which  the  plaintiff  supposes  himself  entitled,  and  also  shall  contain 
a  prayer  for  general  relief;  and  if  an  injunction,  or  a  writ  of  ne 
exeat  regno,  or  any  other  special  order,  pending  the  suit,  is  required, 
it  shall  also  be  specially  asked  for. 

22. 

If  any  persons,  other  than  those  named  as  defendants  in  the  bill, 
shall  appear  to  be  necessary  or  proper  parties  thereto,  the  bill  shall 
aver  the  reason  why  they  are  not  made  parties,  by  showing  them  to 
be  without  the  jurisdiction  of  the  court,  or  that  they  can  not  be 
joined  without  ousting  the  jurisdiction  of  the  court  as  to  the  other 
parties.    And  as  to  persons  who  are  without  the  jurisdiction  and  may 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   553 

properly  be  made  parties,  the  bill  may  pray  that  process  may  issue 
to  make  them  parties  to  the  bill  if  they  should  come  within  the  juris- 
diction. 

23. 

The  prayer  for  process  of  subpoena  in  the  bill  shall  contain  the 
names  of  all  the  defendants  named  in  the  introductory  part  of  the 
bill,  and  if  any  of  them  are  known  to  be  infants  under  age,  or  other- 
wise under  guardianship,  shall  state  the  fact,  so  that  the  court  may 
take  order  thereon,  as  justice  may  require  upon  the  return  of  the 
process.  If  an  injunction,  or  a  writ  of  ne  exeat  regno,  or  any  other 
special  order,  pending  the  suit,  is  asked  for  in  the  prayer  for  relief, 
that  shall  be  sufficient,  without  repeating  the  same  in  the  prayer  for 
process. 

24. 

Every  bill  shall  contain  the  signature  of  counsel  annexed  to  It, 
wnich  shall  be  considered  as  an  affirmation  on  his  part  that,  upon 
the  instructions  given  to  him  and  the  case  laid  before  him,  there  is 
good  ground  for  the  suit,  in  the  manner  in  which  it  is  framed. 

25. 

In  order  to  prevent  unnecessary  costs  and  expenses,  and  to  pro- 
mote brevity,  succinctness,  and  directness  in  the  allegations  of  bills 
and  answers,  the  regular  taxable  costs  for  every  bill  and  answer  shall 
in  no  case  exceed  the  sum  which  is  allowed  in  the  State  court  of 
chancery  in  the  district,  if  any  there  be ;  but  if  there  be  none,  then 
it  shall  not  exceed  the  sum  of  three  dollars  for  every  bill  or  answer. 

SCANDAL  AND  IMPERTINENCE  IN  BILLS. 

26. 

Every  bill  shall  be  expressed  in  as  brief  and  succinct  terms  as  it 
reasonably  can  be,  and  shall  contain  no  unnecessary  recitals  of  deeds, 
documents,  contracts,  or  other  instruments,  in  hsec  verba,  or  any 
other  impertinent  matter,  or  any  scandalous  matter  not  relevant  to 
the  suit.  If  it  does,  it  may,  on  exceptions,  be  referred  to  a  master, 
by  any  judge  of  the  court,  for  impertinence  or  scandal ;  and  if  so 
found  by  him,  the  matter  shall  be  expunged  at  the  expense  of  the 
plaintiff,  and  he  shall  pay  to  the  defendant  all  his  costs  in  the  suit 
up  to  that  time,  unless  the  court  or  a  judge  thereof  shall  otherwise 
order.  If  the  master  shall  report  that  the  bill  is  not  scandalous  or 
impertinent,  the  plaintiff  shall  be  entitled  to  all  costs  occasioned  by 
the  reference. 


554  APPENDIX. 


27. 

No  order  shall  be  made  by  any  judge  for  referring  any  bill,  answer, 
or  pleading,  or  other  matter  or  proceeding,  depending  before  the 
court,  for  scandal  or  impertinence,  unless  exceptions  are  taken  in 
writing  and  signed  by  counsel,  describing  the  particular  passages 
which  are  considered  to  be  scandalous  or  impertinent;  nor  unless 
the  exceptions  shall  be  filed  on  or  before  the  next  rule-day  after  the 
process  on  the  bill  shall  be  returnable,  or  after  the  answer  or  plead- 
ing is  filed.  And  such  order,  when  obtained,  shall  be  considered  as 
abandoned,  unless  the  party  obtaining  the  order  shall,  without  any 
unnecessary  delay,  procure  the  master  to  examine  and  report  for  the 
same  on  or  before  the  next  succeeding  rule-day,  or  the  master  shall 
certify  that  further  time  is  necessary  for  him  to  complete  the  ex- 
amination. 

AMENDMENT  OF  BILLS. 

28. 

The  plaintiff  shall  be  at  liberty,  as  a  matter  of  course,  and  with- 
out payment  of  costs,  to  amend  his  bill,  in  any  matters  whatsoever, 
before  any  copy  has  been  taken  out  of  the  clerk's  office,  and  in  any 
small  matters  afterwards,  such  as  filing  blanks,  correcting  errors  of 
dates,  misnomer  of  parties,  misdescription  of  premises,  clerical  er- 
rors, and  generally  in  matters  of  form.  But  if  he  amend  in  a  ma- 
terial point  (as  he  may  do  of  course)  after  a  copy  has  been  so  taken, 
before  any  answer  or  plea  or  demurrer  to  the  bill,  he  shall  pay  to 
the  defendant  the  costs  occasioned  thereby,  and  shall,  without  delay, 
furnish  him  a  fair  copy  thereof,  free  of  expense,  with  suitable  refer- 
ences to  the  places  where  the  same  are  to  be  inserted.  And  if  the 
amendments  are  numerous,  he  shall  furnish,  in  like  manner,  to  the 
defendant,  a  copy  of  the  whole  bill  as  amended;  and  if  there  be 
more  than  one  defendant,  a  copy  shall  be  furnished  to  each  defend- 
ant affected  thereby. 

29. 

After  an  answer,  or  plea,  or  demurrer  is  put  in,  and  before  repli- 
cation, the  plaintiff  may,  upon  motion  or  petition,  without  notice,  ob- 
tain an  order  from  any  judge  of  the  court  to  amend  his  bill  on  or 
before  the  next  succeeding  rule-day,  upon  payment  of  costs  or  with- 
out payment  of  costs,  as  the  court  or  a  judge  thereof  may  in  his  dis- 
cretion direct.  But  after  replication  filed,  the  plaintiff  shall  not  be 
permitted  to  withdraw  it  and  to  amend  his  bill,  except  upon  a  special 
order  of  a  judge  of  the  court,  upon  motion  or  petition,  after  due  no- 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   555 

tice  to  the  other  party,  and  upon  proof  by  affidavit  that  the  same 
is  not  made  for  the  purpose  of  vexation  or  delay,  or  that  the  matter 
of  the  proposed  amendment  is  material,  and  could  not  with  reasonable 
diligence  have  been  sooner  introduced  into  the  bill,  and  upon  the 
plaintiff's  submitting  to  such  other  terms  as  may  be  imposed  by  the 
judge  for  speeding  the  cause. 

30. 

If  the  plaintiff  so  obtaining  any  order  to  amend  his  bill  after  an- 
swer, or  plea,  or  demurrer,  or  after  replication,  shall  not  file  his 
amendments  or  amended  bill,  as  the  case  may  require,  in  the  clerk's 
office  on  or  before  the  next  succeeding  rule-day,  he  shall  be  considered 
to  have  abandoned  the  same,  and  the  cause  shall  proceed  as  if  no 
application  for  any  amendment  had  been  made. 

DEMURRERS  AND  PLEAS. 

31. 

No  demurrer  or  plea  shall  be  allowed  to  be  filed  to  any  bill,  un- 
less upon  a  certificate  of  counsel,  that  in  his  opinion  it  is  well  founded 
in  point  of  law,  and  supported  by  the  affidavit  of  the  defendant ;  that 
it  is  not  interposed  for  delay ;  and,  if  a  plea,  that  it  is  true  in  point 
of  fact. 

32. 

The  defendant  may  at  any  time  before  the  bill  is  taken  for  con- 
fessed, or  afterward  with  the  leave  of  the  court,  demur  or  plead  to 
the  whole  bill,  or  to  part  of  it,  and  he  may  demur  to  part,  plead  to 
part,  and  answer  as  to  the  residue ;  but  in  every  case  in  which  the 
bill  specially  charges  fraud  or  combination,  a  plea  to  such  part  must 
be  accompanied  with  an  answer  fortifying  the  plea  and  explicitly  de- 
nying the  fraud  and  combination,  and  the  facts  on  which  the  charge 
is  founded. 

33. 

The  plaintiff  may  set  down  the  demurrer  or  plea  to  be  argued,  or 
he  may  take  issue  on  the  plea.  If,  upon  an  issue,  the  fact  stated  in 
the  plea  be  determined  for  the  defendant,  they  shall  avail  him  as  far 
as  in  law  and  equity  they  ought  to  avail  him. 

34. 

If,  upon  the  hearing,  any  demurrer  or  plea  is  overruled,  the  plain- 
tiff shall  be  entitled  to  his  costs  in  the  cause  up  to  that  period  un- 
less the  court  shall  be  satisfied  that  the  defendant  has  good  ground, 
in  point  of  law  or  fact,  to  interpose  the  same,  and  it  was  not  inter- 


556  APPENDIX. 

posed  vexatiously  or  for  delay.  And,  upon  the  overruling  of  any 
plea  or  demurrer,  the  defendant  shall  be  assigned  to  answer  the  bill, 
or  so  much  thereof  as  Is  covered  by  the  plea  or  demurrer,  the  next 
succeeding  rule-day,  or  at  such  other  period  as,  consistently  with  jus- 
tice and  the  rights  of  the  defendant,  the  same  can,  in  tlie  judgment 
of  the  court,  be  reasonably  done;  in  default  whereof,  the  bill  shall 
be  taken  against  him  pro  confesso,  and  the  matter  thereof  proceeded  in 
and  decreed  accordingly. 

35. 
If,  upon  the  hearing,  any  demurrer  or  plea  shall  be  allowed,  the 
defendant  shall  be  entitled  to  his  costs.     But  the  court  may,  in  its 
discretion,  upon  motion  of  the  plaintiff,  allow  him  to  amend  his  bill, 
upon  such  terms  as  it  shall  deem  reasonable. 

36. 

No  demurrer  or  plea  shall  be  held  bad  and  overruled  upon  argu- 
ment, only  because  such  demurrer  or  plea  shall  not  cover  so  much 
of  the  bill  as  it  might  by  law  have  extended  to. 

37. 

No  demurrer  or  plea  shall  be  held  bad  and  overruled  upon  argu- 
ment, only  because  the  answer  of  the  defendant  may  extend  to  some 
part  of  the  same  matter  as  may  be  covered  by  such  demurrer  or  plea. 

38. 

If  the  plantiff  shall  not  reply  to  any  plea,  or  set  down  any  plea  or 
demurrer  for  argument  on  the  rule-day  when  the  same  is  filed,  or  on 
the  next  succeeding  rule-day,  he  shall  be  deemed  to  admit  the  truth 
and  sufficiency  thereof,  and  his  bill  shall  be  dismissed  as  of  course, 
unless  a  judge  of  the  court  shall  allow  him  further  time  for  that  pur- 
pose. 

ANSWERS. 

39. 

The  rule,  that  If  a  defendant  submits  to  answer  he  shall  answer 
fully  to  all  the  matters  of  the  bill,  shall  no  longer  apply  in  cases 
where  he  might  by  plea  protect  himself  from  such  answer  and  dis- 
covery. And  the  defendant  shall  be  entitled  in  all  cases  by  answer 
to  insist  upon  all  matters  of  defense  (not  being  matters  of  abatement, 
or  to  the  character  of  the  parties,  or  matters  of  form)  in  bar  of  or 
to  the  merits  of  the  bill,  of  which  he  may  be  entitled  to  avail  himself 
by  a  plea  in  bar ;  and  in  such  answer  he  shall  not  be  compellable  to 
answer  any  other  matters  than  he  would  be  compellable  to  answer 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   557 

and  discover  upon  filing  a  plea  in  bar  and  an  answer  in  support  of 
such  plea,  touching  the  matters  set  forth  in  the  bill  to  avoid  or  repel 
the  bar  or  defense.  Thus,  for  example,  a  bona-fide  purchaser,  for  a 
valuable  consideration  without  notice,  may  set  up  that  defense  by 
way  of  answer  instead  of  plea,  and  shall  be  entitled  to  the  same  pro- 
tection, and  shall  not  be  compellable  to  make  any  further  answer  or 
discovery  of  his  title  than  he  would  be  in  any  answer  in  support  of 
such  plea. 

40. 

A  defendant  shall  not  be  bound  to  answer  any  statement  or  charge 
in  the  bill,  unless  specially  and  particularly  interrogated  thereto; 
and  a  defendant  shall  not  be  bound  to  answer  any  interrogatory  in 
the  bill,  except  those  interrogatories  which  such  defendant  is  required 
to  answer ;  and  where  a  defendant  shall  answer  any  statement  or 
charge  in  the  bill  to  which  he  is  not  interrogated,  only  by  stating  his 
ignorance  of  the  matter  so  stated  or  charged,  such  answer  shall  be 
deemed  impertinent. 

December  Term,  1850. 

Ordered,  That  the  fortieth  rule,  heretofore  adopted  and  promul- 
gated by  this  court  as  one  of  the  rules  of  practice  in  suits  in  equity 
in  the  circuit  courts,  be,  and  the  same  is  hereby,  repealed  and  an- 
nulled. And  it  shall  not  hereafter  be  necessary  to  interrogate  a  de- 
fendant specially  and  particularly  upon  any  statement  in  the  bill,  un- 
less the  complainant  desires  to  do  so,  to  obtain  a  discovery. 

41. 

The  interrogatories  contained  in  the  interrogating  part  of  the  bill 
shall  be  divided  as  conveniently  as  may  be  from  each  other  and  num- 
bered consecutively  1,  2,  3,  etc. ;  and  the  interrogatories  which  each 
defendant  is  required  to  answer  shall  be  specified  in  a  note  at  the 
foot  of  the  bill,  in  the  form  or  to  the  effect  following,  that  is  to  say : 
"The  defendant  (A.  B.)  is  required  to  answer  the  interrogatories  num- 
bered respectively  1,  2,  3,"  etc. ;  and  the  office  copy  of  the  bill  taken 
by  each  defendant  shall  not  contain  any  interrogatories  except  those 
which  such  defendant  is  so  required  to  answer,  unless  such  defend- 
ant shall  require  to  be  furnished  with  a  copy  of  the  whole  bill. 

December  Term,  1871. 

Amendment  to  4:1st  Equity  Rule. 

If  the  complainant,  in  his  bill,  shall  waive  an  answer  under  oath, 
or  shall  only  require  an  answer  under  oath  with  regard  to  certain 
specified  interrogatories,  the  answer  of  the  defendant,  though  under 


55S  APPENDIX. 

oath,  except  such  part  thereof  as  shall  be  directly  responsive  to  such 
Interrogatories,  shall  not  be  evidence  In  his  favor,  unless  the  cause 
be  set  down  for  hearing  on  bill  and  answer  only ;  but  may  neverthe- 
less be  used  as  an  affidavit,  with  the  same  effect  as  heretofore,  on  a 
motion  to  grant  or  dissolve  an  injunction,  or  on  any  other  incidental 
motion  in  the  cause ;  but  this  shall  not  prevent  a  defendant  from  be- 
coming a  witness  in  his  own  behalf  under  section  3  of  the  act  of  Con- 
gress of  July  2,  1864. 

42. 
The  note  at  the  foot  of  the  bill,  specifying  the  interrogatories  which 
each  defendant  is  required  to  answer,  shall  be  considered  and  treated 
as  part  of  the  bill,  and  the  addition  of  any  such  note  to  the  bill,  or 
any  alteration  in  or  addition  to  such  note,  after  the  bill  is  filed,  shall 
be  considered  and  treated  as  an  amendment  of  the  bill. 

43. 

Instead  of  the  words  of  the  bill  now  in  use,  preceding  the  interro- 
gating part  thereof,  and  beginning  with  the  words  "To  the  end  there- 
fore," there  shall  hereafter  be  used  words  in  the  form  or  to  the  ef- 
fect following:  "To  the  end,  therefore,  that  the  said  defendants 
may,  if  they  can,  show  why  your  orator  should  not  have  the  relief 
hereby  prayed,  and  may,  upon  their  several  and  respective  corporal 
oaths,  and  according  to  the  best  and  utmost  of  their  several  and  re- 
spective knowledge,  remembrance,  information,  and  belief,  full,  true, 
direct,  and  perfect  answers  make  to  such  of  the  several  interrogatories 
hereinafter  numbered  and  set  forth,  as  by  the  note  hereunder  written 
they  are  respectively  required  to  answer;   that  is  to  say — 

"1.  Whether,  &c. 

"2.  Whether,  &c" 

44. 

A  defendant  shall  be  at  liberty,  by  answer,  to  decline  answering 
any  interrogatory,  or  part  of  an  interrogatory,  from  answering  which 
he  might  have  protected  himself  by  demurrer;  and  he  shall  be  at 
liberty  so  to  decline,  notwithstanding  he  shall  answer  other  parts  of 
the  bill  from  which  he  might  have  protected  himself  by  demurrer. 

45. 

No  special  replication  to  any  answer  shall  be  filed.  But  if  any  mat- 
ter alleged  in  the  answer  shall  make  it  necessary  for  the  plaintiff  to 
amend  his  bill,  he  may  have  leave  to  amend  the  same  with  or  with- 
out the  payment  of  costs,  as  the  court,  or  a  judge  thereof,  may  in  his 
discretion  direct 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  8.   559 


46. 

In  every  case  where  an  amendment  shall  be  made  after  answer 
filed,  the  defendant  shall  put  in  a  new  or  supplemental  answer  on 
or  before  the  next  succeeding  rule-day  after  that  on  which  the  amend- 
ment or  amended  bill  is  filed,  unless  the  time  is  enlarged  or  other- 
wise ordered  by  a  judge  of  the  court ;  and  upon  his  default,  the  like 
proceedings  may  be  had  as  in  cases  of  an  omission  to  put  in  an  an- 
swer. 

PARTIES  TO  BILLS. 

47. 

In  all  cases  where  it  shall  appear  to  the  court  that  persons,  who 
might  otherwise  be  deemed  necessary  or  proper  parties  to  the  suit, 
can  not  be  made  parties  by  reason  of  their  being  out  of  the  juris- 
diction of  the  court,  or  incapable  otherwise  of  being  made  parties,  or 
because  their  joinder  would  oust  the  jurisdiction  of  the  court  as  to 
the  parties  before  the  court,  the  court  may,  in  their  discretion,  pro- 
ceed in  the  cause  without  making  such  persons  parties ;  and  in  such 
cases  the  decree  shall  be  without  prejudice  to  the  rights  of  the  ab- 
sent parties. 

48. 

Where  the  parties  on  either  side  are  very  numerous,  and  can  not, 
without  manifest  inconvenience  and  oppressive  delays  in  the  suit,  be 
all  brought  before  it,  the  court  in  its  discretion  may  dispense  with 
making  all  of  them  parties,  and  may  proceed  in  the  suit,  having  suf- 
ficient parties  before  it  to  represent  all  the  adverse  interest  of  the 
plaintiffs  and  the  defendants  in  the  suit  properly  before  it.  But, 
in  such  cases,  the  decree  shall  be  without  prejudice  to  the  rights  and 
claims  of  all  the  absent  parties. 

49. 

In  all  suits  concerning  real  estate  which  is  vested  In  trustees  by 
devise,  and  such  trustees  are  competent  to  sell  and  give  discharges 
for  the  proceeds  of  the  sale,  and  for  the  rents  and  profits  of  the 
estate,  such  trustees  shall  represent  the  persons  beneficially  inter- 
ested in  the  estate,  or  the  proceeds,  or  the  rents  and  profits,  in  the 
same  manner  and  to  the  same  extent  as  the  executors  or  adminis- 
trators in  suits  concerning  personal  estate  represent  the  persons  ben- 
eficially interested  in  such  personal  estate ;  and  in  such  cases  it  shall 
not  be  necessary  to  make  the  persons  beneficially  interested  in  such 
real  estates,  or  rents  and  profits,  parties  to  the  suit;    but  the  court 


560  APPENDIX. 

may,  upon  consideration  of  the  matter  on  the  hearing,  If  It  shall  so 
think  fit,  order  such  persons  to  be  made  parties. 

50. 

In  suits  to  execute  the  trusts  of  a  will,  It  shall  not  be  necessary 
to  make  the  heir  at  law  a  party ;  but  the  plaintiffs  shall  be  at  lib- 
erty to  make  the  heir  at  law  a  party  where  he  desires  to  have  the 
will  established  against  him. 

51. 

In  all  cases  in  which  the  plaintiff  has  a  joint  and  several  demand 
against  several  persons,  eitber  as  principals  or  sureties,  it  shall  not 
be  necessary  to  bring  before  the  court  as  parties  to  a  suit  concerning 
such  demand  all  the  persons  liable  thereto ;  but  the  plaintiff  may 
proceed  against  one  or  more  of  the  persons  severally  liable. 

52. 

Where  the  defendant  shall,  by  bis  answer,  suggest  that  the  bill 
Is  defective  for  want  of  parties,  the  plaintiff  shall  be  at  liberty, 
within  fourteen  days  after  answer  filed,  to  set  down  the  cause  for 
argument  upon  that  objection  only ;  and  the  purpose  for  which  the 
same  is  so  set  down  shall  be  notified  by  an  entry,  to  be  made  in  the 
clerk's  order-book,  in  the  form  or  to  tbe  effect  following,  (that  is  to 
say;)  "Set  down  upon  the  defendant's  objection  for  what  of  par- 
ties." And  where  the  plaintiff  shall  not  so  set  down  his  cause,  but 
shall  proceed  therewith  to  a  hearing,  notwithstanding  an  objection 
for  want  of  parties  taken  by  the  answer,  he  shall  not,  at  the  hearing 
of  the  cause,  if  the  defendant's  objection  shall  then  be  allowed  be 
entitled  as  of  course  to  an  order  for  liberty  to  amend  his  bill  by  add- 
ing parties.  But  the  court,  if  it  thinks  fit,  shall  be  at  liberty  to  dis- 
miss the  bill. 

53. 

If  a  defendant  shall,  at  the  hearing  of  a  cause,  object  that  a  suit 
is  defective  for  want  of  parties  not  having  by  plea  ur  answer  taken 
the  objection,  and  therein  specified  by  name  or  description  of  parties 
to  whom  the  objection  applies,  the  court  (if  it  shall  think  fit)  shall 
be  at  liberty  to  make  a  decree  saving  the  rights  of  the  absent  parties. 

NOMINAL  PARTIES  TO  BILLS. 

54. 

Where  no  account,  payment,  conveyance,  or  other  direct  relief  is 
sought  against  a  party  to  a  suit,  not  being  an  infant,  the  party,  upon 
service  of  the  subpoena  upon  him,  need  not  appear  and  answer  the 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   561 

bill,  unless  the  plaintiff  specially  requires  him  so  to  do  by  the  prayer 
of  his  bill;  but  he  may  appear  and  answer  at  his  option:  and  if  he 
does  not  appear  and  answer  he  shall  be  bound  by  all  the  proceedings 
in  the  cause.  If  the  plaintiff  shall  require  him  to  appear  and  answer 
he  shall  be  entitled  to  the  costs  of  all  the  proceedings  against  him 
unless  the  court  shall  otherwise  direct. 

55. 

Whenever  an  injunction  is  asked  for  by  the  bill  to  stay  proceed- 
ings at  law,  if  the  defendant  do  not  enter  his  appearance  and  plead, 
demur,  or  answer  to  the  same  within  the  time  prescribed  therefor  by 
these  rules,  the  plaintiff  shall  be  entitled  as  of  course,  upon  motion, 
without  notice,  to  such  injunction.  But  special  injunctions  shall  be 
grantable  only  upon  due  notice  to  the  other  party  by  the  court  in 
term,  or  by  a  judge  thereof  in  vacation,  after  a  hearing,  which  may 
be  ex  parte,  if  the  adverse  party  does  not  appear  at  the  time  and  place 
ordered.  In  every  case  where  an  injunction — either  the  common  in- 
junction or  a  special  injunction — is  awarded  in  vacation,  it  shall,  un- 
less previously  dissolved  by  the  judge  granting  the  same,  continue 
until  the  next  term  of  the  court,  or  until  it  is  dissolved  by  some  other 
order  of  the  court 

BILLS  OF  REVIVOR  AND  SUPPLEMENTAL  BILLS. 

56. 

Whenever  a  suit  in  equity  shall  become  abated  by  the  death  of 
either  party,  or  by  any  other  event,  the  same  may  be  revived  by  a 
bill  of  revivor  or  a  bill  in  the  nature  of  a  bill  of  revivor,  as  the  cir- 
cumstances of  the  case  may  require,  filed  by  the  proper  parties  en- 
titled to  revive  the  same,  which  bill  may  be  filed  in  the  clerk's  office 
at  any  time;  and,  upon  suggestion  of  the  facts,  the  proper  process 
of  subpoena  shall,  as  of  course,  be  issued  by  the  clerk,  requiring  the 
proper  representatives  of  the  other  party  to  appear  and  show  cause, 
if  any  they  have,  why  the  cause  should  not  be  revived.  And  if  no 
cause  shall  be  shown  at  the  next  rule-day  which  shall  occur  after 
fourteen  days  from  the  time  of  the  service  of  the  same  process,  the 
suit  shall  stand  revived,  as  of  course. 

57. 

Whenever  any  suit  in  equity  shall  become  defective  from  any  event 
happening  after  the  filing  of  the  bill  (as,  for  example,  by  change  of 
interest  in  the  parties),  or  for  any  other  reason  a  supplemental  bill, 
or  a  bill  in  the  nature  of  a  supplemental  bill,  may  be  necessary  to 
be  filed  in  the  cause,  leave  to  file  the  same  may  be  granted  by  any 

Hughes  Fed.Juk. — 36 


562  APPENDIX. 

Judge  of  the  court  on  any  rule-day  upon  proper  cause  shown  and  due 
notice  to  the  other  party.  And  if  leave  Is  granted  to  file  such  sup- 
plemental bill,  the  defendant  shall  demur,  plead,  or  answer  thereto 
on  the  next  succeeding  rule-day  after  the  supplemental  bill  is  filed 
in  the  clerk's  office,  unless  some  other  time  shall  be  assigned  by  a 
judge  of  the  court 

58. 

It  shall  not  be  necessary  in  any  bill  of  revivor  or  supplemental  bill 
to  set  forth  any  of  the  statements  in  the  original  suit,  unless  the  spe- 
cial circumstances  of  the  case  may  require  it 

ANSWERS. 

59. 

Every  defendant  may  swear  to  his  answer  before  any  Justice  or 
judge  of  any  court  of  the  United  States,  or  before  any  commissioner 
appointed  by  any  circuit  court  to  take  testimony  or  depositions,  or 
before  any  master  in  chancery  appointed  by  any  circuit  court,  or  be- 
fore any  judge  of  any  court  of  a  State  or  Territory,  or  before  any 
notary  public. 

AMENDMENT  OF  ANSWERS. 

60. 

After  an  answer  is  put  in,  it  may  be  amended,  as  of  course,  in  any 
matter  of  form,  or  by  filling  up  a  blank,  or  correcting  a  date,  or 
reference  to  a  document,  or  other  small  matter,  and  be  re-sworn,  at 
any  time  before  a  replication  is  put  in,  or  the  cause  is  set  down  for 
a  hearing  upon  bill  and  answer.  But  after  replication,  or  such  set- 
ting down  for  a  hearing,  it  shall  not  be  amended  in  any  material 
matters,  as  by  adding  new  facts  or  defenses,  or  qualifying  or  altering 
the  original  statements,  except  by  special  leave  of  the  court,  or  of  a 
judge  thereof,  upon  motion  and  cause  shown,  after  due  notice  to  the 
adverse  party,  supported,  if  required,  by  affidavit ;  and  in  every  case 
where  leave  is  so  granted,  the  court  or  the  judge  granting  the  same 
may,  in  his  discretion,  require  that  the  same  be  separately  engrossed, 
and  added  as  a  distinct  amendment  to  the  original  answer,  so  as  to 
be  distinguishable  therefrom. 

EXCEPTIONS  TO  ANSWERS. 

61. 

After  an  answer  is  filed  on  any  rule-day,  the  plaintiff  shall  be  al- 
lowed until  the  next  succeeding  rule-day  to  file  in  the  clerk's  office  ex- 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   563 

ceptions  thereto  for  Insufficiency,  and  no  longer,  unless  a  longer  time 
shall  be  allowed  for  the  purpose,  upon  cause  shown  to  the  court,  or  a 
judge  thereof:  and,  if  no  exception  shall  be  filed  thereto  within  that 
period,  the  answer  shall  be  deemed  and  taken  to  be  sufficient. 

62. 

When  the  same  solicitor  is  employed  for  two' or  more  defendants, 
and  separate  answers  shall  be  filed,  or  other  proceedings  had,  by 
two  or  more  of  the  defendants  separately,  costs  shall  not  be  allowed 
for  such  separate  answers,  or  other  proceedings,  unless  a  master, 
upon  reference  to  him,  shall  certify  that  such  separate  answers  and 
other  pi'oceedings  were  necessary  or  proper,  and  ought  not  to  have 
been  joined  together. 

63. 

Where  exceptions  shall  be  filed  to  the  answer  for  insufficiency, 
within  the  period  prescribed  by  these  rules,  if  the  defendant  shall 
not  submit  to  the  same  and  file  an  amended  answer  on  the  next  suc- 
ceeding rule-day,  the  plaintiff  shall  forthwith  set  them  down  for  a 
hearing  on  the  next  succeeding  rule-day  thereafter,  before  a  judge 
of  the  court,  and  shall  enter,  as  of  course,  in  the  order-book,  an  order 
for  that  purpose;  and  if  he  shall  not  so  set  down  the  same  for  a 
hearing,  the  exceptions  shall  be  deemed  abandoned,  and  the  answer 
shall  be  deemed  sufficient ;  provided,  however,  that  the  court,  or  any 
judge  thereof,  may,  for  good  cause  shown,  enlarge  the  time  for  filing 
exceptions,  or  for  answering  the  same,  in  his  discretion,  upon  such 
terms  as  he  may  deem  reasonable. 

64. 

If,  at  the  hearing,  the  exceptions  shall  be  allowed,  the  defendant 
shall  be  bound  to  put  in  a  full  and  complete  answer  thereto  on  the 
next  succeeding  rule-day ;  otherwise  the  plaintiff  shall,  as  of  course, 
be  entitled  to  take  the  bill,  so  far  as  the  matter  of  such  exceptions  is 
concerned,  as  confessed,  or,  at  his  election,  he  may  have  a  writ  of 
attachment  to  compel  the  defendant  to  make  a  better  answer  to  the 
matter  of  the  exceptions ;  and  the  defendant,  when  he  is  in  custody 
upon  such  writ,  shall  not  be  discharged  therefrom  but  by  an  order 
of  the  court,  or  of  a  judge  thereof,  upon  his  putting  in  such  answer. 
and  complying  with  such  other  terms  as  the  court  or  judge  may  di- 
rect. 

65. 

If,  upon  argument,  the  plaintiff's  exceptions  to  the  answer  shall  be 
overruled,  or  the  answer  shall  be  adjudged  insufficient,  the  prevailing 
party  shall  be  entitled  to  all  the  costs  occasioned  thereby,   unless 


564  APPENDIX. 

otherwise  directed,  by  the  court,  or  the  judge  thereof,  at  the  hearing 
upon  the  exceptions. 

REPLICATION  AND  ISSUE. 

66. 

Whenever  the  answer  of  the  defendant  shall  not  be  excepted  to, 
or  shall  be  adjudged  or  deemed  sufficient,  the  plaintiff  shall  file  the 
general  replication  thereto  on  or  before  the  next  succeeding  rule-day 
thereafter ;  and  in  all  cases  where  the  general  replication  is  filed, 
the  cause  shall  be  deemed,  to  all  intents  and  purposes,  at  issue,  with- 
out any  rejoinder  or  other  pleading  on  either  side.  If  the  plaintiff 
shall  omit  or  refuse  to  file  such  replication  within  the  prescribed 
period,  the  defendant  shall  be  entitled  to  an  order,  as  of  course,  for 
a  dismissal  of  the  suit ;  and  the  suit  shall  thereupon  stand  dis- 
missed, unless  the  court,  or  a  judge  thereof,  shall,  upon  motion,  for 
cause  shown,  allow  a  replication  to  be  filed  nunc  pro  tunc,  the  plain- 
tiff submitting  to  speed  the  cause  and  to  such  other  terms  as  may  be 
directed. 

TESTIMONY— HOW  TAKEN. 

67. 

After  the  cause  is  at  issue,  commissions  to  take  testimony  may  be 
taken  out  in  vacation  as  well  as  in  term,  jointly  by  both  parties,  or 
severally  by  either  party,  upon  interrogatories  filed  by  the  party 
taking  out  the  same  in  the  clerk's  office,  ten  days'  notice  thereof  be- 
ing given  to  the  adverse  party  to  file  cross-interrogatories  before  the 
issuing  of  the  commission ;  and  if  no  cross-interrogatories  are  filed 
at  the  expiration  of  the  time  the  commission  may  issue  ex  parte.  In 
all  cases  the  commissioner  or  commissioners  may  be  named  by  the 
court  or  by  a  judge  thereof;  and  the  presiding  judge  of  the  court 
exercising  jurisdiction  may,  either  in  term  time  or  in  vacation,  vest 
in  the  clerk  of  the  court  general  power  to  name  commissioners  to 
take  testimony. 

Either  party  may  give  notice  to  the  other  that  he  desires  the  evi- 
dence to  be  adduced  in  the  cause  to  be  taken  orally,  and  thereupon 
all  the  witnesses  to  be  examined  shall  be  examined  before  one  of  the 
examiners  of  the  court,  or  before  an  examiner  to  be  specially  ap- 
pointed by  the  court.  The  examiner,  if  he  so  request,  shall  be  fur- 
nished with  a  copy  of  the  pleadings. 

Such  examination  shall  take  place  in  the  presence  of  the  parties  or 
their  agents,  by  their  counsel  or  solicitors,  and  the  witnesses  shall 
be  subject  to  cross-examination  and  reexamination,  all  of  which  shall 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   565 

be  conducted  as  near  as  may  be  in  the  mode  now  used  in  common- 
law  courts. 

The  depositions  taken  upon  such  oral  examination  shall  be  reduced 
to  writing  by  the  examiner,  in  the  form  of  question  put  and  answer 
given ;  provided,  that,  by  consent  of  parties,  the  examiner  may  take 
down  the  testimony  of  any  witness  in  the  form  of  narrative. 

At  the  request  of  either  party,  with  reasonable  notice,  the  deposi- 
tion of  any  witness  shall,  under  the  direction  of  the  examiner,  be 
taken  down  either  by  a  skillful  stenographer  or  by  a  skillful  type- 
writer, as  the  examiner  may  elect,  and  when  taken  stenographically 
shall  be  put  into  typewriting  or  other  writing ;  provided,  that  such 
stenographer  or  typewriter  has  been  appointed  by  the  court,  or  is 
approved  by  both  parties. 

The  testimony  of  each  witness,  after  such  reduction  to  writing, 
shall  be  read  over  to  him  and  signed  by  him  in  the  presence  of  the 
examiner  and  of  such  of  the  parties  or  counsel  as  may  attend ;  pro- 
vided, that  if  the  witness  shall  refuse  to  sign  his  deposition  so 
taken,  then  the  examiner  shall  sign  tbe  same,  stating  upon  the  rec- 
ord the  reasons,  if  any,  assigned  by  the  witness  for  such  refusal. 

The  examiner  may,  upon  all  examinations,  state  any  special  mat- 
ters to  the  court  as  he  shall  think  fit ;  and  any  question  or  questions 
which  may  be  objected  to  shall  be  noted  by  the  examiner  upon  the 
deposition,  but  he  shall  not  have  power  to  decide  on  the  competency, 
materiality,  or  relevancy  of  the  questions ;  and  the  court  shall  have 
power  to  deal  with  the  costs  of  incompetent,  immaterial,  or  irrelevant 
depositions,  or  parts  of  tbem,  as  may  be  just. 

In  case  of  refusal  of  witnesses  to  attend,  to  be  sworn,  or  to  an- 
swer any  question  put  by  the  examiner,  or  by  counsel  or  solicitor, 
the  same  practice  shall  be  adopted  as  is  now  practiced  with  respect 
to  witnesses  to  be  produced  on  examination  before  an  examiner  of 
said  court  on  written  interrogatories. 

Notice  shall  be  given  by  the  respective  counsel  or  solicitors  to  the 
opposite  counsel  or  solicitors,  or  parties,  of  the  time  and  place  of 
the  examination,  for  such  reasonable  time  as  the  examiner  may  fix 
by  order  in  each  cause. 

When  the  examination  of  witnesses  before  the  examiner  is  con- 
cluded, the  original  depositions,  authenticated  by  the  signature  of 
the  examiner,  shall  be  transmitted  by  him  to  the  clerk  of  the  court, 
to  be  there  filed  of  record,  in  the  same  mode  as  prescribed  in  sec- 
tion 865  of  the  Revised  Statutes. 

Testimony  may  be  taken  on  commission  in  the  usual  way,  by  writ- 
ten interrogatories  and  cross-interrogatories,  on  motion  to  the  court 
in  term  time,  or  to  a  judge  in  vacation,  for  special  reasons,  satisfac- 
tory to  the  court  or  judge. 


5G6  APPENDIX. 

Where  the  evidence  to  be  adduced  In  a  cause  Is  to  be  taken  orally, 
as  before  provided,  the  court  may,  on  motion  of  either  party,  assign 
a  time  within  which  the  complainant  shall  take  his  evidence  in  sup- 
port of  the  bill,  and  a  time  thereafter  within  which  the  defendant 
shall  take  his  evidence  in  defense,  and  a  time  thereafter  within  which 
the  complainant  shall  take  his  evidence  in  reply ;  and  no  further  evi- 
dence shall  be  taken  in  the  cause,  unless  by  agreement  of  the  parties 
or  by  leave  of  court  first  obtained,  on  motion  for  cause  shown. 

The  expense  of  the  taking  down  of  depositions  by  a  stenographer 
and  of  putting  them  into  typewriting  or  other  writing  shall  be  paid 
in  the  first  instance  by  the  party  calling  the  witness,  and  shall  be 
imposed  by  the  court,  as  part  of  the  costs,  upon  such  party  as  the 
court  shall  adjudge  should  ultimately  bear  them. 

Upon  due  notice  given  as  prescribed  by  previous  order,  the  court 
may,  at  its  discretion,  permit  the  whole,  or  any  specific  part,  of  the 
evidence  to  be  adduced  orally  in  open  court  on  final  hearing. 

68. 

Testimony  may  also  be  taken  in  the  cause,  after  It  is  at  issue,  by 
deposition,  according  to  the  act  of  Congress.  But  in  such  case,  if 
no  notice  is  given  to  the  adverse  party  of  the  time  and  place  of  tak- 
ing the  deposition,  he  shall,  upon  motion  and  affidavit  of  the  fact,  be 
entitled  to  a  cross-examination  of  the  witness,  either  under  a  com- 
mission or  by  a  new  deposition  taken  under  the  acts  of  Congress,  if 
a  court  or  judge  thereof  shall,  under  all  the  circumstances,  deem  it 
reasonable. 

69. 

Three  months,  and  no  more,  shall  be  allowed  for  the  taking  of 
testimony  after  the  cause  is  at  issue,  unless  the  court,  or  a  judge 
thereof,  shall,  upon  special  cause  shown  by  either  party,  enlarge  the 
time ;  and  no  testimony  taken  after  such  period  shall  be  allowed  to 
be  read  in  evidence  at  the  hearing.  Immediately  upon  the  return 
of  the  commissions  and  depositions  containing  the  testimony  into 
the  clerk's  office,  publication  thereof  may  be  ordered  in  the  clerk's 
office,  by  any  judge  of  the  court,  upon  due  notice  to  the  parties,  or  It 
may  be  enlarged,  as  he  may  deem  reasonable,  under  all  the  circum- 
stances ;  but,  by  consent  of  the  parties,  publication  of  the  testimony 
may  at  any  time  pass  into  the  clerk's  office,  such  consent  being  in 
writing,  and  a  copy  thereof  entered  in  the  order-books,  or  indorsed 
upon  the  deposition  or  testimony. 


EULES  OF  PRACTICE  FOB  COURTS  OF  EQUITY  OF  U.  S.      567 

TESTIMONY  DE  BENE  ESSE. 

70. 

After  any  bill  filed  and  before  the  defendant  hath  answered  the 
same,  upon  affidavit  made  that  any  of  the  plaintiff's  witnesses  are 
aged  and  infirm,  or  going  out  of  the  country,  or  that  any  one  of 
them  is  a  single  witness  to  a  material  fact,  the  clerk  of  the  court 
shall,  as  of  course,  upon  the  application  of  the  plaintiff,  issue  a 
commission  to  such  commissioner  or  commissioners  as  a  judge  of  the 
court  may  direct,  to  take  the  examination  of  such  witness  or  wit- 
nesses de  bene  esse,  upon  giving  due  notice  to  the  adverse  party  of 
the  time  and  place  of  taking  his  testimony. 

FORM  OF  THE  LAST  INTERROGATORY. 

71. 

The  last  interrogatory  in  the  written  interrogatories  to  take  testi- 
mony now  commonly  in  use  shall  in  the  future  be  altered,  and  stated 
in  substance  thus :  "Do  you  know,  or  can  you  set  forth,  any  other 
matter  or  thing  which  may  be  a  benefit  or  advantage  to  the  parties 
at  issue  in  this  cause,  or  either  of  them,  or  that  may  be  material  to 
the  subject  of  this  your  examination,  or  the  matters  in  question  In 
this  cause?  If  yea,  set  forth  the  same  fully  and  at  large  in  your 
answer." 

CROSS-BILL. 

72. 

Where  a  defendant  In  equity  files  a  cross-bill  for  discovery  only 
against  the  plaintiff  in  the  original  bill,  the  defendant  to  the  original 
bill  shall  first  answer  thereto  before  the  original  plaintiff  shall  be 
compellable  to  answer  the  cross-bill.  The  answer  of  the  original 
plaintiff  to  such  cross-bill  may  be  read  and  used  by  the  party  filing 
the  cross-bill  at  the  hearing,  in  the  same  manner  and  under  the  same 
restrictions  as  the  answer  praying  relief  may  now  be  read  and  used. 

REFERENCE  TO  AND  PROCEEDINGS  BEFORE  MASTERS. 

73. 

Every  decree  for  an  account  of  the  personal  estate  of  a  testator  or 
intestate  shall  contain  a  direction  to  the  master  to  whom  it  is  re- 
ferred to  take  the  same  to  inquire  and  state  to  the  court  what  parts, 
if  any,  of  such  personal  estate  are  outstanding  or  undisposed  of,  un- 
less the  court  shall  otherwise  direct 


5G8  APPENDIX. 


74. 

Whenever  any  reference  of  any  matter  Is  made  to  a  master  to  ex- 
amine and  report  thereon,  the  party  at  whose  instance  or  for  whose 
benefit  the  reference  is  made  shall  cause  the  same  to  be  presented  to 
the  master  for  a  hearing  on  or  before  the  next  rule-day  succeeding 
the  time  when  the  reference  was  made;  if  he  shall  omit  to  do  so, 
the  adverse  party  shall  be  at  liberty  forthwith  to  cause  proceedings 
to  be  had  before  the  master,  at  the  costs  of  the  party  procuring  the 
reference. 

75. 

Upon  every  such  reference,  it  shall  be  the  duty  of  the  master,  as 
soon  as  he  reasonably  can  after  the  same  is  brought  before  him,  to 
assign  a  time  and  place  for  proceedings  in  the  same,  and  to  give  due 
notice  thereof  to  each  of  the  parties,  or  their  solicitors;  and  if  ei- 
ther party  shall  fail  to  appear  at  the  time  and  place  appointed,  the 
master  shall  be  at  liberty  to  proceed  ex  parte,  or,  in  his  discretion, 
to  adjourn  the  examination  and  proceedings  to  a  future  day,  giving 
notice  to  the  absent  party  or  his  solicitor  of  such  adjournment ;  and 
it  shall  be  the  duty  of  the  master  to  proceed  with  all  reasonable  dili- 
gence in  every  such  reference,  and  with  the  least  practicable  delay, 
and  either  party  shall  be  at  liberty  to  apply  to  the  court,  or  a  judge 
thereof,  for  an  order  to  the  master  to  speed  the  proceedings  and  to 
make  his  report,  and  to  certify  to  the  court  or  judge  the  reason  for 
any  delay. 

76. 

In  the  reports  made  by  the  master  to  the  court,  no  part  of  any 
state  of  facts,  charge,  affidavit,  deposition,  examination,  or  answer 
brought  in  or  used  before  them  shall  be  stated  or  recited.  But  such 
state  of  facts,  charge,  affidavit,  deposition,  examination,  or  answer 
shall  be  identified,  specified,  and  referred  to,  so  as  to  inform  the  court 
what  state  of  facts,  charge,  affidavit,  deposition,  examination,  or  an- 
swer were  so  brought  in  or  used. 

77. 

The  master  shall  regulate  all  the  proceedings  in  every  hearing  be- 
fore him,  upon  every  such  reference ;  and  he  shall  have  full  authority 
to  examine  the  parties  in  tbe  cause,  upon  oath,  touching  all  matters 
contained  in  the  reference ;  and  also  to  require  the  production  of  all 
books,  papers,  writings,  vouchers,  and  other  documents  applicable 
thereto ;  and  also  to  examine  on  oath,  viva  voce,  all  witnesses  pro- 
duced by  the  parties  before  him,  and  to  order  the  examination  of 
other  witnesses  to  be  taken,  under  a  commission  to  be  issued  upon 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   569 

his  certificate  from  the  clerk's  office  or  by  deposition,  according  to 
the  act  of  Congress,  or  otherwise,  as  hereinafter  provided ;  and  also 
to  direct  the  mode  in  which  the  matters  requiring  evidence  shall  be 
proved  before  him ;  and  generally  to  do  all  other  acts,  and  direct  all 
other  inquiries  and  proceedings  in  the  matters  before  him,  which  he 
may  deem  necessary  and  proper  to  the  justice  and  merits  thereof  and 
the  rights  of  the  parties. 

78. 
Witnesses  who  live  within  the  district  may,  upon  due  notice  to  the 
opposite  party,  be  summoned  to  appear  before  the  commissioner  ap- 
pointed to  take  testimony,  or  before  a  master  or  examiner  appointed 
in  any  cause,  by  subpoena  in  the  usual  form,  which  may  be  issued  by 
the  clerk  in  blank,  and  filled  up  by  the  party  praying  the  same,  or 
by  the  commissioner,  master,  or  examiner,  requiring  the  attendance 
of  the  witnesses  at  the  time  and  place  specified,  who  shall  be  allowed 
for  attendance  the  same  compensation  as  for  attendance  In  court; 
and  if  any  witness  shall  refuse  to  appear  or  give  evidence  it  shall 
be  deemed  a  contempt  of  the  court,  which  being  certified  to  the  clerk's 
office  by  the  commissioner,  master,  or  examiner,  an  attachment  may 
issue  thereupon  by  order  of  the  court  or  of  any  judge  thereof,  in  the 
same  manner  as  if  the  contempt  were  for  not  attending,  or  for  re- 
fusing to  give  testimony  in  the  court.  But  nothing  herein  contained 
shall  prevent  the  examination  of  witnesses  viva  voce  when  produced 
in  open  court,  if  the  court  shall,  In  its  discretion,  deem  it  advisable. 

79. 

All  parties  accounting  before  a  master  shall  bring  in  their  respec- 
tive accounts  in  the  form  of  debtor  and  creditor;  and  any  of  the 
other  parties  who  shall  not  be  satisfied  with  the  account  so  brought 
in  shall  be  at  liberty  to  examine  the  accounting  party  viva  voce,  or 
upon  interrogatories,  in  the  master's  office,  or  by  deposition,  as  the 
master  shall  direct. 

80. 

All  affidavits,  depositions,  and  documents  which  have  been  pre- 
viously made,  read,  or  used  in  the  court  upon  any  proceeding  in  any 
cause  or  matter  may  be  used  before  the  master. 

81. 

The  master  shall  be  at  liberty  to  examine  any  creditor  or  other 
person  coming  in  to  claim  before  him,  either  upon  written  interroga- 
tories or  viva  voce,  or  in  both  modes,  as  the  nature  of  the  case  may 
appear  to  him  to  require.  The  evidence  upon  such  examinations 
shall  be  taken  down  by  the  master,  or  by  some  other  person  by  his 


570  APPENDIX. 

order  and  In  his  presence,  if  either  party  requires  it,  in  order  that 
the  same  may  be  used  by  the  court  if  necessary. 

82. 

The  circuit  courts  may  appoint  standing  masters  in  chancery  in 
their  respective  districts,  (a  majority  of  all  the  judges  thereof,  in- 
cluding the  justice  of  the  Supreme  Court,  the  circuit  judges,  and  the 
district  judge  for  the  district,  concurring  in  the  appointment,)  and 
they  may  also  appoint  a  master  pro  hac  vice  in  any  particular  case. 
The  compensation  to  be  allowed  to  every  master  in  chancery  for  his 
services  in  any  particular  case  shall  be  fixed  by  the  circuit  court,  in 
its  discretion,  having  regard  to  all  the  circumstances  thereof,  and  the 
compensation  shall  be  charged  upon  and  borne  by  such  of  the  parties 
in  the  cause  as  the  court  shall  direct.  The  master  shall  not  retain 
his  report  as  security  for  his  compensation;  but  when  the  com- 
pensation is  allowed  by  the  court,  he  shall  be  entitled  to  an  attach- 
ment for  the  amount  against  the  party  who  is  ordered  to  pay  the 
same,  if,  upon  notice  thereof,  he  does  not  pay  it  within  the  time  pre- 
scribed by  the  court. 

EXCEPTIONS  TO  REPORT  OF  MASTER. 

83. 

The  master,  as  soon  as  his  report  is  ready,  shall  return  the  same 
into  the  clerk's  office,  and  the  day  of  the  return  shall  be  entered  by 
the  clerk  in  the  order-book.  The  parties  shall  have  one  month  from 
the  time  of  filing  the  report  to  file  exceptions  thereto ;  and,  if  no 
exceptions  are  within  that  period  filed  by  either  party,  the  report 
shall  stand  confirmed  on  the  next  rule-day  after  the  month  is  expired. 
If  exceptions  are  filed,  they  shall  stand  for  hearing  before  the  court, 
if  the  court  is  then  in  session ;  or,  if  not,  then  at  the  next  sitting  of 
the  court  which  shall  be  held  thereafter,  by  adjournment  or  other- 
wise, 

84. 

And,  in  order  to  prevent  exceptions  to  reports  from  being  filed  for 
frivolous  causes,  or  for  mere  delay,  the  party  whose  exceptions  are 
overruled  shall,  for  every  exception  overruled,  pay  costs  to  the  other 
party,  and  for  every  exception  allowed  shall  be  entitled  to  costs ;  the 
cost  to  be  fixed  in  each  case  by  the  court,  by  a  standing  rule  of  the 
circuit  court. 


RULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   571 

DECREES. 
85. 

Clerical  mistakes  In  decrees  or  decretal  orders,  or  errors  arising 
from  any  accidental  slip  or  omission,  may,  at  any  time  before  an  ac- 
tual enrollment  thereof,  be  corrected  by  order  of  the  court  or  a  judge 
thereof,  upon  petition,  without  the  form  or  expense  of  a  rehearing. 

86. 

In  drawing  up  decrees  and  orders,  neither  the  bill,  nor  answer,  nor 
other  pleadings,  nor  any  part  thereof,  nor  the  report  of  any  master, 
nor  any  other  prior  proceeding,  shall  be  recited  or  stated  in  the  de- 
cree or  order ;  but  the  decree  and  order  shall  begin,  in  substance,  as 
follows:  "This  cause  came  on  to  be  heard  (or  to  be  further  heard, 
as  the  case  may  be)  at  this  term,  and  was  argued  by  counsel ;  and 
thereupon,  upon  consideration  thereof,  it  was  ordered,  adjudged,  and 
decreed  as  follows,  viz.:"    [Here  insert  the  decree  or  order.] 

GUARDIANS  AND  PROCHEIN  AMIS. 

87. 

Guardians  ad  litem  to  defend  a  suit  may  be  appointed  by  the  court, 
or  by  any  judge  thereof,  for  infants  or  other  persons  who  are  under 
guardianship,  or  otherwise  incapable  to  sue  for  themselves.  All  in- 
fants and  other  persons  so  incapable  may  sue  by  their  guardians,  if 
any,  or  by  their  prochein  ami ;  subject,  however,  to  such  orders  as 
the  court  may  direct  for  the  protection  of  infants  and  other  persons. 

88. 

Every  petition  for  a  rehearing  shall  contain  the  special  matter  or 
cause  on  which  such  rehearing  is  applied  for,  shall  be  signed  by 
counsel,  and  the  facts  therein  stated,  if  not  apparent  on  the  record, 
shall  be  verified  by  the  oath  of  the  party  or  by  some  other  person. 
No  hearing  shall  be  granted  after  the  term  at  which  the  final  decree 
of  the  court  shall  have  been  entered  and  recorded,  if  an  appeal  lies  to 
the  Supreme  Court.  But  if  no  appeal  lies,  the  petition  may  be  ad- 
mitted at  any  time  before  the  end  of  the  next  term  of  the  court,  it 
the  discretion  of  the  court 

89. 

The  circuit  courts  (a  majority  of  all  the  judges  thereof,  Including 
the  justice  of  the  Supreme  Court,  the  circuit  judges,  and  the  district 
judge  for  the  district,  concurring  therein)  may  make  any  other  and 


572 


APPENDIX. 


further  rules  and  regulations  for  the  practice,  proceedings,  and  pro- 
cess, mesne  and  final,  in  their  respective  districts,  not  inconsistent 
with  the  rules  hereby  prescribed,  in  their  discretion,  and  from  time  to 
time  alter  and  amend  the  same. 

90. 

In  all  cases  where  the  rules  prescribed  by  this  court  or  by  the 
circuit  court  do  not  apply,  the  practice  of  the  circuit  court  shall  be 
regulated  by  the  present  practice  of  the  hi  h  court  of  chancery  in 
England,  so  far  as  the  same  may  reasonably  be  applied  consistently 
with  the  local  circumstances  and  local  conveniences  of  the  district 
where  the  court  is  held,  not  as  positive  rules,  but  as  furnishing  just 
analogies  to  regulate  the  practice. 

91. 

Whenever,  under  these  rules,  an  oath  is  or  may  be  required  to  be 
taken,  the  party  may,  if  conscientiously  scrupulous  of  taking  an  oath, 
in  lieu  thereof  make  solemn  affirmation  to  the  truth  of  the  facts 
stated  by  him. 

December  Term,  1863. 

92. 

Ordered,  That  in  suits  in  equity  for  the  foreclosure  of  mortgages 
in  the  circuit  courts  of  the  United  States,  or  in  any  court  of  the 
Territories  having  jurisdiction  of  the  same,  a  decree  may  be  rendered 
for  any  balance  that  may  be  found  due  to  the  complainant  over  and 
above  the  proceeds  of  the  sale  or  sales,  and  execution  may  issue  for 
the  collection  of  the  same,  as  is  provided  in  the  eighth  rule  of  this 
court  regulating  the  equity  practice,  where  the  decree  is  solely  for  the 
payment  of  money. 

October  Term,  1878. 

INJUNCTIONS. 
93. 

When  an  appeal  from  a  final  decree,  in  an  equity  suit,  granting  or 
dissolving  an  injunction,  is  allowed  by  a  justice  or  judge  who  took 
part  in  the  decision  of  the  cause,  he  may,  in  his  discretion,  at  the 
time  of  such  allowance,  make  an  order  suspending  or  modifying  the 
injunction  during  the  pendency  of  the  appeal,  upon  such  terms,  as 
to  bond  or  otherwise,  as  he  may  consider  proper  for  the  security  of 
the  rights  of  the  opposite  party. 


BULES  OF  PRACTICE  FOR  COURTS  OF  EQUITY  OF  U.  S.   573 

October  Term,  1881. 

94. 

Every  bill  brought  by  one  or  more  stockholders  in  a  corporation 
against  the  corporation  and  other  parties,  founded  on  rights  which 
may  properly  be  asserted  by  the  corporation,  must  be  verified  by 
oath,  and  must  contain  an  allegation  that  the  plaintiff  was  a  share- 
holder at  the  time  of  the  transaction  of  which  he  complains,  or  that 
his  share  had  devolved  on  him  since  by  operation  of  law,  and  that 
the  suit  is  not  a  collusive  one  to  confer  on  a  court  of  the  United 
States  jurisdiction  of  a  case  of  which  it  would  not  otherwise  have 
cognizance.  It  must  also  set  forth  with  particularity  the  efforts  of 
the  plaintiff  to  secure  such  action  as  he  desires  on  the  part  of  the 
managing  directors  or  trustees,  and,  if  necessary,  of  the  shareholders, 
and  the  causes  of  his  failure  to  obtain  such  action. 

The  following  provisions  relating  to  equity  practice  are  to  oe  found 
in  the  Act  of  1st  of  June,  1872 : 

Sec.  7.  That  whenever  notice  is  given  of  a  motion  for  an  injunc- 
tion out  of  a  circuit  or  district  court  of  the  United  States,  the  court 
or  judge  thereof  may,  if  there  appear  to  be  danger  of  irreparable  in- 
jury from  delay,  grant  an  order  restraining  the  act  sought  to  be  en- 
joined until  the  decision  upon  the  motion.  Such  order  may  be  granted 
with  or  without  security,  in  the  discretion  of  the  court  or  judge: 
Provided,  That  no  justice  of  the  Supreme  Court  shall  hear  or  al- 
low any  application  for  an  injunction  or  restraining  order  except 
within  the  circuit  to  which  he  is  allotted,  and  in  causes  pending  in 
the  circuit  to  which  he  is  allotted,  or  in  such  causes  at  such  place 
outside  of  the  circuit  as  the  parties  may  in  writing  stipulate,  except 
in  causes  where  such  application  can  not  be  heard  by  the  circuit  judge 
of  the  circuit,  or  the  district  judge  of  the  district. 

Sec.  13.  That  when  in  any  suit  in  equity,  commenced  in  any  court 
in  the  United  States,  to  enforce  any  legal  or  equitable  lien  or  claim 
against  real  or  personal  property  within  the  district  where  such  suit 
is  brought,  one  or  more  of  the  defendants  therein  shall  not  be  an 
inhabitant  of  or  found  within  the  said  district,  or  shall  not  volun- 
tarily appear  thereto,  it  shall  be  lawful  for  the  court  to  make  an 
order  directing  such  absent  defendant  to  appear,  plead,  answer,  or 
demur  to  the  complainant's  bill  at  a  certain  day  therein  to  be  desig- 
nated, which  order  shall  be  served  on  such  absent  defendant,  if  prac- 
ticable, wherever  found ;  or  where  such  personal  service  is  not  prac- 
ticable, such  order  shall  be  published  in  such  a  manner  as  the  court 
shall  direct;    and  in  case  such  absent  defendant  shall  not  appear, 


574  APPENDIX. 

plead,  answer,  or  demur  within  the  time  so  limited,  or  within  some 
further  time  to  be  allowed  by  the  court,  In  its  discretion,  and  upon 
proof  of  the  service  or  publication  of  said  order,  and  of  the  perform- 
ance of  the  directions  contained  in  the  same,  it  shall  be  lawful  for  the 
court  to  entertain  jurisdiction,  and  proceed  to  the  hearing  and  ad- 
judication of  such  suit  in  the  same  manner  as  if  such  absent  defend- 
ant had  been  served  with  process  within  the  said  district;  but  such 
adjudication  shall,  as  regards  such  absent  defendant  without  appear- 
ance, affect  his  property  within  such  district  only. 


TABLE 


OF 


LEADING  AND  ILLUSTRATIVE  CASES 
TOPICALLY  ARRANGED. 


Page 


515 

517 


APPEAL  AND  ERROR, 
Decrees,  finality  of, 

Chesapeake  &  Potomac  Tel.  Co.  r.  Manning,  186  U.  S. 

238,  22  Sup.  Ct.  881 • 

Haseltine  v.  Bank,  183  U.  S.  130,  22  Sup.  Ct  49  

Klrwan  v.  Murphy,  170  U.  S.  205,  18  Sup.  Ct.  592  . . . . . .  511 

McGourkey  v.  Railroad  Co.,  146  U.  S.  536,  13  Sup.  Ct  ^ 

Williams  V.Bruffy,'  102  U.  S.  248 482>  517 

Writ  of  error,  01    51g 

Bartemeyer  v.  Iowa,  14  Wall.  26 •  •••  •  •  •  •  •  •  •       » 

Capital  Traction  Co.  v.  Hof,  174  U.  S.  1,  19  Sup.  Ct.  580     499 
Mussina  v.  Cavazos,  6  Wall.  355 501,  &U4 

BANKRUPTCY, 

Acts  of  bankruptcy,  general  assignment, 

West  Co.  v.  Lea,  174  U.  S.  590,  19  Sup.  Ct.  836 96,  101 

Acts  of  bankruptcy,  preferences, 

Wilson  v.  Nelson,  183  U.  S.  191,  22  Sup.  Ct.  74  .99.  100 

Jaquith  v.  Alden,  189  U.  S.  78,  23  Sup.  Ct.  649 118,  132 

Adverse  claimants,  remedies  against, 

Bryan  v.   Bernheimer,  181   U.  S.  188,  21   Sup.^Ct  557  ^ 

Constitutionality, 

Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  Ml ^Sup.  ^ 

Ct.  8o7 

Discharge,  debt  fraudulently  contracted, 

Forsyth  v.  Vehmeyer,  177  U.  S.  177,  20  Sup.  Ct.  623 lo7 

Exemption,  1  Aa 

Lockwood  v.  Bank,  190  U.  S.  294,  23  Sup.  Ct  7ol 146 

Insolvency,  meaning  of, 

Eggert,  In  re,  98  Fed.  843,  102  Fed.  735 140,  4dB 

Hughes  Fed.Jijr.  (575) 


57G  LEADING   AND   ILLUSTRATIVE   CASES. 

Page 
BANKRUPTCY— Cont'd. 

Jury  trial,  method  of  reviewing, 

Elliott  v.  Toeppner,  1S7  U.  S.  327,  23  Sup.  Ct.  133 

114,  439,  441 
State  and  federal  courts,  relative  powers  of, 

Metcalf  v.  Barker,  187  U.  S.  165,  23  Sup.  Ct.  67.. 100,  110,  134 
State  insolvent  laws, 

Oilman  v.  Lockwood,  4  Wall.  409 80 

Trustee,  bis  powers  and  title, 

Glenny  v.  Langdon,  98  U.  S.  20 136 

Norton  v.  Hood,  124  U.  S.  20,  8  Sup.  Ct.  357 129,  130 

Page  v.  Edmunds,  187  U.  S.  596,  23  Sup.  Ct.  200 130 

CIRCUIT  COURT, 

Aliens,  jurisdiction  of  suits, 

Barrow  S.   S.  Co.  v.  Kane,  170  U.  S.  100,  18  Sup.  Ct 

526 226,  230,  358 

Hennessy  v.  Drug  Co.,  189  U.  S.  25,  23  Sup.  Ct.  532 228 

Ancillary  jurisdiction, 

Johnson  v.  Christian,  125  U.  S.  642,  8  Sup.  Ct.  989 272 

Root  v.  Woolworth,  150  U.  S.  401,  14  Sup.  Ct.  136...  .267,  421 

Rosenbauin  v.  Bauer,  120  U.  S.  450,  7  Sup.  Ct.  633 271 

White  v.  Ewing,  159  U.  S.  36, 15  Sup.  Ct.  1018 266,  268 

Assignee,  when  may  sue, 

Holmes  v.  Goldsmith,  147  U.  S.  150,  13  Sup.  Ct.  288 243 

Plant  Inv.  Co.  v.   Railroad  Co.,  152  U.   S.  71,  14  Sup. 

Ct.483 242 

Citizenship, 

Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct  221 211 

Corporations,  citizenship  of, 

Southern  Ry.  Co.  v.  Allison,  190  U.  S.  326,  23  Sup.  Ct 

7!3  . .  .217,  279,  488 

St  Louis  &  S.  F.  Ry.  Co.  v.  James,  161  U.  S.  545,  16  Sup. 

Ct  621  215,  217 

Devices  to  confer  jurisdiction, 

Lehigh  Min.  &  Mfg.  Co.  v.  Kelly,  160  U.  S.  327,  16  Sup. 

Ct  307   248 

Morris  v.  Gilmer,  129  U.  S.  315,  9  Sup.  Ct  289 247,  250 

District  of  suit, 

Greeley  v.  Lowe,  155  U.  S.  58,  15  Sup.  Ct  24 236,  237,  294 

Des  Moines  &  M.  R.  Co.,  Ex  parte,  103  U.  S.  794 238,  359 

Smith  v.  Lyon,  133  U.  S.  315,  10  Sup.  Ct.  303 232 

St.  Louis  &  S.  F.  R.  Co.  v.  McBride,  141  U.  S.  127,  11 
Sup.  Ct.  982 229 


LEADING   AND    ILLUSTRATIVE    CASES.  577 

CIRCUIT  COURT— Cont'd.  Page 

Federal  question, 

Continental  Nat.  Bank  v.  Buford,  191  U.  S.  119,  24  Sup. 

Ct  54 207.  216,  446 

Little  York  Gold  Washing  &  Water  Co.  v.  Keyes,  9(>  U. 

O.     _LJt7      ••••«., •••••••#  90Q 

Tennessee  v.  Bank,  152  U.  S.  454,  14  Sup.  Ct.  esiV.V.aO^  286 
Matter  in  dispute, 

Edwards  v.  Bates  Co.,  163  U.  S.  269,  16  Sup.  Ct.  967. .. .  199 

Fishback  v.  Telegraph  Co.,  161  U.  S.  96,  16  Sup.  Ct.  506. . 

201,  202 

Wheless  v.  St.  Louis,  ISO  C.  S.  379,  21  Sup.  Ct.  402..  .196,  201 
Parties, 

Florida  Cent.  &  P.  R.  Co.  v.  Bell,  176  U.  S.  321,  20  Sup. 

Ct  3" 204,  220,  445 

Shields  v.  Barrow,  17  How.  139 222 

Suit,  at  law  or  in  equity, 

McConihay  v.  Wright,  121  U.  S.  201,  7  Sup.  Ct.  940 194 

Pacific  Steam  Whaling  Co.  v.  U.  S.,  187  U.  S    447    23 

Sup.  Ct.  154 .'..!. ...19*3,  467 

Scott  v.  Neely,  140  U.  S.  106,  11  Sup.  Ct.  712 

195.  289,  294.  354 
Upshur  Co.  v.  Rich,  135  U.  S.  467,  10  Sup.  Ct.  651. . .  .192,  193 
Trust  acts,  suits  under, 

Northern  Securities  Co.  v.  U.  S.,  193  U.  S.  197,  24  Sup. 

„         Ct  436 263,  468 

United  States,  suits  by, 

U.  S.  v.  Say  ward,  160  U.  S.  493,  16  Sup.  Ct  371.  .65,  202,  292 
CIRCUIT  COURT  OF  APPEALS, 
Auxiliary  writs,  power  to  issue, 

Paquet,  In  re,  114  Fed.  437 449 

Bankruptcy, 

Holden  v.  Stratton,  191  U.  S.  115,  24  Sup.  Ct.  45 

439,  442,  443,  477 
Constitutional  questions, 

Huguley  Mfg.  Co.  v.  Cotton  Mills,  184  U.  S.  290  22  Sup 

T  Ct  452 ,435,'  475 

Jurisdictional  questions, 

Robinson  v.  Caldwell,  165  U.  S.  359,  17  Sup.  Ct.  343... 434,  454 

Smith  v.  McKay,  161  U.  S.  355,  16  Sup.  Ct.  490 432.  455 

U.  S.  v.  Jahn,  155  U.  S.  109, 15  Sup.  Ct  39 433,  434^  447 

Hughes  Fed.Jur. — 37 


578  LEADING  AND   ILLUSTRATIVE   CASES. 

Page 
COMMON-LAW  PROCEDURE, 
Amendments, 

West  v.  Smith,  101  U.  S.  263 361 

Bills  of  exception, 

Chateaugay  Ore  &  Iron  Co.,  Ex  parte,  128  U.  S.  544,  9 

Sup.  Ct.  150 370 

Hunnicutt  v.  Peyton,  102  U.  S.  333 370 

Thorn  v.  Pittard,  62  Fed.  232 371 

Defenses  available, 

Dushane  v.  Benedict,  120  U.  S.  630,  7  Sup.  Ct.  696. .  .354,  361 
Instructing  jury, 

City  of  Lincoln  v.  Power,  151  U.  S.  436,  14  Sup.  Ct  387. . 

366,  367 

McCrea  v.  Parsons,  112  Fed.  917 364,  369 

Union  Pac.  Ry.  Co.  v.  Callaghan,  161  U.  S.  91,  16  Sup. 

Ct.  493 368 

Judgments,  reopening  of, 

Bronson  v.  Schulten,  104  U.  S.  410 374 

Jury,  waiver  of, 

.    Bond  v.  Dustin,  112  U.  S.  604,  5  Sup.  Ct.  296 364 

Regulation  of  by  rule, 

Shepard  v.  Adams,  168  U.  S.  618,  18  Sup.  Ct.  214 356,  459 

State  practice,  how  far  followed, 

Indianapolis  &  St.  L.  R.  Co.  v.  Horst,  93  U.  S.  291. .  .360,  372 
Verdict, 

Bond  v.  Dustin,  112  U.  S.  604,  5  Sup.  Ct  296 371 

CRIMES, 

Infamous  offense, 

Wilson,  Ex  parte,  114  U.  S.  417,  5  Sup.  Ct  935 35,  43 

Waters  over  which  federal  jurisdiction  extends, 

U.  S.  v.  Rodgers,  150  U.  S.  249,  14  Sup.  Ct.  109 23 

U.  S.  v.  Rogers,  46  Fed.  1 23 

CRIMINAL  PROCEDURE, 
Bills  of  exception, 

Lees  v.  U.  S.,  150  U.  S.  476,  14  Sup.  Ct  163. . .  .56,  61,  63,  253 
Evidence,  confronting  with  witnesses, 

Motes  v.  U.  S.,  178  U.  S.  458,  20  Sup.  Ct  993... 49,  59,  463,  464 
Evidence,  failure  of  accused  to  testify, 

Wilson  v.  U.  S.,  149  U.  S.  60,  13  Sup.  Ct.  765 51,  53 

Former  jeopardy,  mode  of  pleading, 

Thompson  v.  U.  S.f  155  U.  S.  271,  15  Sup.  Ct  73 48 


LEADING   AND    ILLUSTRATIVE   CASES.  579 

Page 
CRIMINAL  PROCEDURE— Contd. 

Indictment,  not  amendable, 

Bain,  Ex  parte,  121  U.  S.  1,  7  Slip.  Ct  781 41,  177 

Indictment,  requisites, 

U.  S.  v.  Cruikshank,  92  U.  S.  542 37 

Andersen  v.  U.  S.,  170  U.  S.  481,  18  Sup.  Ct  689 39,  41 

Instructions  to  jury, 

Sparf  v.  U.  S.,  156  U.  S.  51,  15  Sup.  Ct  273 ...54,  57 

DISTRICT  COURT, 

Jurisdiction  over  penalties, 

U.  S.  v.  Mooney,  116  U.  S.  104,  6  Sup.  Ct  304 61,  254 

EQUITY  PROCEDURE, 
Answer  as  evidence, 

Latta  v.  Kilbourn,  150  U.  S.  524,  14  Sup.  Ct.  201 404 

Default  decrees, 

Thomson  v.  Wooster,  114  U.  S.  104,  5  Sup.  Ot  788.  .382,  394 
Injunctions  to  state  courts, 

Moran  v.  Sturges,  154  U.  S.  256,  14  Sup.  Ct.  1019 390 

Plea,  office  of, 

Farley  v.  Kittson,  120  U.  S.  303,  7  Sup.  Ct.  534 397 

References,  special  masters, 

Kimberly  v.  Arms,  129  U.  S.  512,  9  Sup.  Ct  355 413,  414 

References,  exceptions  to  report, 

Sheffield  &  B.  Coal,  Iron  &  R.  Co.  v.  Gordon,  151  U.  S. 

285.  14  Sup.  Ct.  343 415,  416 

Rehearings, 

Moelle  v.  Sherwood,  148  U.  S.  21,  13  Sup.  Ct  426. .  .395,  422 
Sales  outside  district  of  suit, 

Muller  v.  Dows,  94  U.  S.  444 420 

FEDERAL  COURTS, 

Are  of  limited  jurisdiction, 

Grace  v.  Insurance  Co.,  109  U.  S.  278,  3  Sup.  Ct.  207. ...       5 
How  far  apply  state  laws  and  decisions, 

Connecticut  Mut.  Life  Ins.  Co.  v.  Trust  Co.,  112  U.  S. 
250,  5  Sup.  Ct.  119 11 

Lowndes  v.  Huntington,  153  U.  S.  1,  14  Sup.  Ct.  758. ...     15 

Smith  t.  Alabama,  124  U.  S.  465,  8  Sup.  Ct.  564 7 

HABEAS  CORPUS. 

Federal  questions  only, 

Duncan,  In  re,  139  U.  S.  449,  11  Sup.  Ct.  573 178 

Jurisdictional  questions  only, 

Debs,  In  re,  158  U.  S.  564,  15  Sup.  Ct.  900 176 


5S0  LEADING   AND   ILLUSTRATIVE   CASES. 

Page 
HABEAS  CORPUS— Cont'd. 

Officer  of  United  States,  right  to, 

Neagle,  In  re,  135  U.  S.  1,  10  Sup.  Ct.  658.  .179,  182,  184,  186 
Reluctance  to  interfere  with  state  criminal  laws, 

Wood,  In  re,  140  U.  S.  278,  11  Sup.  Ct.  738 181 

Restraint  necessary, 

Wales  v.  Whitney,  114  U.  S.  564,  5  Sup.  Ct  1050.  ...175,  176 

JUDICIAL  SALES, 
Setting  aside, 

Schroeder  v.  Young,  161  U.  S.  334,  16  Sup.  Ct.  512.  .377,  420 

REMOVAL  OF  CAUSES, 

Federal  question,  plaintiff's  pleading  must  show, 

Walker  v.  Collins,  167  U.  S.  57,  17  Sup.  Ct.  738 287 

Jurisdiction  to  remove  only  if  originally  cognizable. 

Mexican  Nat.  R.  Co.  v.  Davidson,  157  U.  S.  201,  15  Sup. 

Ct.  563 289,  294,  295 

Petition,  amendment  of, 

Kinney  v.  Association,  191  U.  S.  78,  24  Sup.  Ct.  30 325 

Petition,  not  a  general  appearance, 

Wabash  W.  Ry.  Co.  v.  Brow,  164  U.  S.  271,  17  Sup-  Ot 

126   345 

Petition,  time  of  filing, 

Martin  v.  Railway  Co.,  151  U.  S.  673,  14  Sup.  Ct.  533. ..  334 
Separable  controversy, 

Barney  v.  Latham,  103  U.  S.  205 308 

Chesapeake  &  O.  Ry.  Co.  v.  Dixon,  179  U.  S.  131,  21  Sup. 
Ct.    67 304 

Hyde  v.  Ruble.  104  U.  S.  407 303 

Torrence  v.  Shedd,  144  U.  S.  527,  12  Sup.  Ct.  726 303 

Trial  of  right  to, 

Stone  v.  South  Carolina,  117  U.  S.  430,  6  Sup.  Ct.  799. . 

212,  304,  340 
Waiver  of  right  to, 

Chesapeake  &  O.  Ry.  Co.  v.  White,  111  U.  S.  134,  4  Sup. 
Ct.  353 278,  340 

STATE, 

Controversies  to  which  a  party, 

Missouri  v.  Illinois,  ISO  U.  S.  208,  21  Sup.  Ct.  331....  350 
South  Dakota  v.  North  Carolina,  192  U.  S.  286,  24  Sup. 

Ct.  269 350 

Wisconsin  v.  Insurance  Co.,  127  U.  S.  265,  8  Sup.  Ct 

1370  348 


LEADING   AND   ILLUSTRATIVE    CASES.  581 

SUPREME  COURT, 

Certiorari  to  circuit  court  of  appeals, 

Forsyth  v.  Hammond,  166  U.  S.  506,  17  Sup.  Ct.  665.  .478,  474 
Warner  v.  New  Orleans,  167  U.  S.  474,  17  Sup.  Ct.  892. .  471 

Constitutional  questions  from   inferior  federal  courts, 

Penn  Mut.  Life  Ins.  Co.  v.  Austin,  168  U.  S.  685,  18  Sup. 
Ct.  223 462,  466 

Jurisdictional  questions  on  certificate, 

Colvin  v.  Jacksonville,  158  U.  S.  456,  15  Sup.  Ct  866....  454 

State  court  decisions, 

Egan  v.  Hart,  165  U.  S.  188,  17  Sup.  Ct.  300 486 

Eustis  v.  Bolles,  150  U.  S.  361,  14  Sup.  Ct.  131 493 

Great  Western  Telegraph  Co.  v.  Burnham,  162  U.  S. 

339,  16  Sup.  Ct.  850 484,  517 

Polleys  v.  Improvement  Co.,  113  U.  S.  81,  5  Sup.  Ct.  369. .  484 
Say  ward  v.  Denny,  158  U.  S.  180,  15  Sup.  Ct  777 490 

UNITED  STATES, 

Coudemnation,  procedure  on, 

Chappell  v.  U.  S.,  160  U.  S.  499,  16  Sup.  Ct.  397 

173,  174,  457,  462,  465 
Condemnation,  public  use, 

U.  S.  v.  Railway  Co.,  160  U.  S.  668,  16  Sup.  Ct  427 173 

Suits  against,  implied  contracts, 

Bigby  v.  U.  S.,  188  U.  S.  400,  23  Sup.  Ct.  468 163,  168 

U.  S.  v.  Lynah,  188  U.  S.  445,  23  Sup.  Ct  349 163 


TABLE  OF  CASES  CITED. 


[the  figtjbes  refer  to  pages.] 


Aberdeen  Bank  v.  Chehalls  Co., 
12. 

Abraham   v.   Insurance  Co.,  393. 

Adams  v.  Shirk,  244,  373. 
v.  Terrell,  86. 

Addyston    Pipe   &    Steel    Co.   v. 
U.    S.,    263. 

Adler,  In  re,  442. 

Agnew  v.  U.  S.,  45. 

Alabama  v.  Wolffe,  316. 

Albany  &  R.  Iron  &  Steel  Co.  T. 
Lundberg,  360. 

Alberty  v.  U.   S.,  51. 

Alderson,  In   re,  120. 

Aldrich  v.  Insurance  Co.,  504. 

Alkire   Grocery   Co.   y.   Richesin, 
200. 

Allen  v.  Massey,  136. 
v.  U.  S.,  56. 

Alliance,   The,  448. 

Allis  v.  U.  S.,  56. 

Allison  v.  U.  S.,  52. 

Allnut   v.    Lancaster,   221. 

Altman,    In   re,   91. 

Ambler  v.   Eppinger,   242. 

American   Bridge   Co.    v.   Peden, 
373. 

American    Cereal    Co.   v.    Cereal 
Co.,  386. 

American  Colortype  Co.  v.  Color- 
type  Co.,  244. 

American    Const.     Co.     T.    Rail- 
way Co.,   425,   473. 

American  Exp.   Co.  v.  Michigan, 
483. 


American   Finance  Co.   T.   Bost- 

wick,    294. 
American   Sugar  Refining  Co.   v. 

New  Orleans,   435,    446. 
American   Waterworks    &   Guar- 
antee Co.  v.  Water  Co.,  242. 
Ames  v.   Kansas,    193,  205,   348. 

v.  Moir,    158. 
Amy  v.  Manning,  313. 

v.  Watertown,    358. 
Andersen   v.    Treat,    185. 

v.  U.   S.,  39,   41. 
Anderson  v.  Appleton,  345. 

v.  U.   S.,  2t>3. 
Andrews   v.   Pipe   Works,   472. 

v.  Swartz,    179. 

v.  U.  S.,  52,  56. 
Anglo    American    Provision    Co. 

v.    Provision   Co.,   434,    435. 
Anglo  Californian  Bank  v.  U.  S., 

444,  447. 
Annie  Faxon,  The,  448. 
Antigo    Screen    Door  Co.,   In  re, 

440. 
Arbuckle  v.  Blackburn,  476. 
Arkansas  v.  Coal  Co.,  204. 

v.  Railway  Co.,  288. 

v.  Schlierholz,  458. 
Arrowsmith  v.  Gleason,  194,  379. 

v.  Harmoning,  492. 
Ashe  v.  Insurance  Co.,  339. 
Ashley  v.  Supervisors,  248. 
Atlanta,  K.  &  N.  Ry.  Co.  v.  Rail- 
way Co.,  277. 
Audubon  v.  Shufeldt,  121. 
Auracher  v.  Railroad  Co.,  290. 


Hughes  FEn.JuB. 


(5S3) 


5S4 


CASES   CITED. 


[The  figures  refer  to  pages.] 


Austin  v.  Riley,  395. 
Auteu  v.  Bank,  65,  476. 
Ayers  v.  Watson,  332. 
Ayres  v.  Polsdorfer,  435. 

v.  Wiswall,  302. 
Aztec  Min.  Co.  v.  Ripley,  478. 

B 

Baehe  v.  Hunt,  432. 
Bacon  v.  Rives,  296. 

v.  Texas,  484,  487. 
Badger  v.  Badger,  3S2. 
Baez,  In  re,  184,  185. 
Bain,  Ex  parte,  41,  177. 
Baiz,  In  re,  71,  352. 
Baker  v.  Grice,  181. 
Baker-Ricketson   Co.,   In  re,   100, 

103. 
Baldwin  v.  Hale,  80. 

v.  Railroad  Co.,  218. 
Balkam  v.  Iron  Co.,  13. 
Ball  v.  U.  S.,  21,  33,  39,  47,  48. 
Ballew  v.  U.  S.,  56. 
Ballinger,  Ex  parte,  23. 
Baltimore  &  O.  R.  Co.  v.  Bates, 
338. 

v.  Baugh,  17. 

v.  Harris,  217. 

v.  Koontz,  217,  343. 

v.  McLaughlin,  216. 
Bamberger  v.  Terry,  362. 
Bankers'    Mut.    Casualty    Co.    v. 

Railway  Co.,  476. 
Bank  of  Rondout  v.  Smith,  511. 
Bank  of  U.  S.  v.  Deveaux,  215. 
Banks  v.  Manchester,  407. 
Bannon  v.  U.  S.,  35,  40. 
Barber  v.  Railroad  Co.,  15. 
Bardes  v.  Bank,  136,  497. 
Barling  v.  Bank,  241. 
Barnes  v.  Telegraph  Co.,  231. 
Barney    v.    Baltimore,    210,    212, 
222. 

v.  Bank,  243. 

v.  Latham,  308. 
Barrett  v.  Power  Co.,  407. 


Barron  v.  Burnside,  279. 

Barrow  S.   S.   Co.  v.   Kane,  226, 

230,  358. 
Barry,  Ex  parte,  351. 
Barry  v.  Edmunds,  198. 

v.  Mercein,  199. 
Barstow  v.  Becket  Co.,  388. 
Bartemeyer  v.  Iowa,  501,  518. 
Bartlett  v.  Gates,  314. 
Basch,  In  re,  159. 
Bassett,  In  re,  88. 
Bates,  In  re,  119. 
Bates  Mach.  Co.,  In  re,  104. 
Bauman  v.  Feist,  155. 

v.  Ross,   173. 
Baumgardner    v.    Fertilizer    Co., 

278. 
Bauserman  v.  Blunt,  9. 
Bausman  v.  Dixon,  209. 
Bayonne,  The,  458. 
Bean,  In  re,  90. 
Bear,  In  re,  93. 
Becker,  In  re,  112,  154. 
Beckerford,  In  re,  78. 
Bedingfield,  In  re,  94. 
Bein  v.   Heath,   379. 
Belden,  In  re,  142. 
Bellaire  v.  Railroad  Co.,  303. 
Benchley  v.  Gilbert,  319. 
Bender  v.  Pennsylvania  Co.,  347. 
Bendey  v.  Townsend,  15. 
Benites  v.  Hampton,  503. 
Benjamin  v.  New  Orleans,  475. 
Bennett  v.  Butterworth,  354. 

v.  Hoeffner,  395. 
Bergen,  In  re,  377. 
Berliner  Gramophone  Co.  v.  Sea- 
man, 522,   523. 
Berry  v.  Railroad  Co.,  305. 
Betancourt  v.  Association,  227. 
Bigby  v.  U.  S.,  163,  168. 
Bigler  v.  Waller,  504. 
Bimberg,  In  re,  159. 
Birdseye  v.  Shaeffer,  347. 
Bishop  v.  Averill,  227. 
Black,  In  re,  146,  153. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


585 


Blair  r.  Ostrander,  375. 

Blake  v.  Coal  Co.,  208. 
v.  McKim,  295. 

Blake,  Moffit  &  Towne  v.  Valen- 
tine, 70. 

Blalock,  In  re,  153,  155. 

Blease  v.  Garlington,  410. 

Blitz  v.  U.  S.,  42. 

Block  v.  Darling,  198. 

Blumenthal  v.  Craig,  211,  212, 
213. 

Blythe  v.  Hinckley,  392,  395,  432, 
493. 

Blythe  Co.  v.  Hinckley,  423. 

Boardrnan,  In  re,  185. 

Board  of  Cora'rs  of  Boise  Co.  r. 
Gorman,  520. 

Board  of  Com'rs  of  Delaware 
County  v.  Lock  Co.,  295. 

Board  of  Com'rs  of  Kearney  Co. 
v.  Yandriss,  199. 

Board  of  Liquidation  of  City  of 
New  Orleans  v.  U.  S.,  271. 

Bock  v.  Perkins,  205. 

Boese  v.  King,  90,  101. 

Bohanan  v.  Nebraska,  488. 

Bond  v.  Dustin,  304,  37L 

Bonner,  In  re,  58,  180. 

Bonner  v.  Meikle,  311. 

Borgmeyer  v.  Idler,  406. 

Bors  v.  Preston,  72,  227,  348. 

Boske  v.  Comingore,  180,  182, 
404. 

Boston  Safe  Deposit  &  Trust  Co. 
v.  Telegraph  Co.,  420. 

Boston  &  Montana  Consol.  Cop- 
per &  Silver  Min.  Co.  v.  Pur- 
chasing Co.,  138,  204. 

Bostwick  v.  Brinkerhoff,  516. 

Bosworth  v.  Hook,  415. 

Bowden  v.  Burnharn,  245. 

Bowdoin  College  v.  Merritt,  250. 

Bowe  v.  U.  S.,  164. 

Bowker  v.  U.  S.,  497. 

Boyd,  In  re,  146. 

Boyer  v.  Keller,  406. 

Boynton,  In  re,  S3. 


Bracken  v.  Milner,  159. 
Bradshaw  v.  Bank,  272. 
Brady  v.  Daly,  255. 
Bram  v.  U.  S.,  40,  50. 
Brandies  v.  Cochrane,  510. 
Breedlove  v.  Nicolet,  220. 
Breslauer,  In  re,  133,  135. 
Brice,  In  re,  82. 
Brinckmann,  In  re,  121. 
Broadis  v.  Broadis,  274. 
Bronson  v.  Schulten,  374. 
Brooklyn    City    &   N.    R.    Co.    v. 

Bank,  10. 
Brooks  v.  Laurent,  274. 
Brown  v.  Grove,  413. 

v.  Iron  Co.,  397. 

v.  McConnell,  501,  507,  508. 

v.  New  Jersey,  13. 

v.  Smart,  80. 

v.  U.  S.,  51. 

v.  Webster,  199. 

v.  Worster,  411. 
Bruce  v.  Railroad  Co.,  196. 
Brundage,  In  re,   120. 
Bryan   v.    Bernheimer,    109,    112, 

135. 
Bryant  v.  U.  S.,  176. 
Bucher  v.  Railroad  Co.,  13. 
Buckingham  v.  Dake,  242. 
Bucklin  v.  U.  S.,  56,  437. 
Buel  v.  Van  Ness,  483. 
Buffington  v.  Harvey,   138. 
Bunker    Hill    &    Sullivan   Mining 
&  Concentrating  Co.  v.  Mining 
Co.,  400. 
Burgess  v.  Seligman,  14. 
Burka,  In  re,  119. 
Burke  v.  Davis,  416. 
Burley  v.  Bank,  361. 
Burruss,  In  re,  178. 
Bush  v.  Kentucky,  316. 
Bushnell  v.  Smeltiug  Co.,  526. 
Butler  v.  Gage,  518. 

v.  Goreley,  80. 
Butts,  In  re,  159. 
Byers  v.  McAuley,  277. 


5SG 


CASES    CITED. 


[The  figures  refer  to  pages.] 


Cady  r.  Colonies,  358. 

Caba  v.  U.  S.,  35,  40. 

California  v.  Jackson,  488. 
v.  Pacific   Co.,   351. 

California  Nat.  Bank  v.  Kennedy, 
207. 

Camden  v.   Mayhew,  420. 

Camden  &  S.  R.  Co.  v.  Stetson, 
365. 

Cameron  v.  Hodges,  328. 
v.  U.  S.,  169. 

Cameron  Town  Mut  Fire,  Light- 
ning &  Windstorm  Ins.  Co.,  In 
re,  87. 

Camfield  v.  U.  S.,  170. 

Camp,  In  re,  90. 

Campbell  v.  Bayneau,  363. 
v.  Haverbill,  9. 
v.  Kirkpatrick,  36. 
v.  Milliken,  311. 

Campbell  Printing  Press  &  Mfg. 
Co.   v.  Marden,  423. 

Canal  Bank  of  New  Orleans  v. 
Partee,  15. 

Canal  &  C.  Sts.  R.  Co.  v.  Hart, 
376. 

Capital  Traction  Co.  v.  Hof,  499. 

Carey  v.  Railway  Co.,  459,  463, 
464. 

Caiiey,  In  re,  149,  440. 

Carlisle  v.  Telegraph  Co.,  322. 

Carll,  Ex  parte,  183. 

Carmicbael,  In  re,  117,  153. 

Carolina  Cooperage  Co.,  In  re,  86. 

Carotbers  v.  Smelting  Co.,  307. 

Carson  v.  Dunham,  488. 

Carter  v.  Texas,  45,  69. 

Carver  v.  U.  S.,  50. 

Case  v.  Olney,  277. 

Cashman  v.  Canal  Co.,  248. 

Gates  v.  Allen,  195,  289,  294. 

Celluloid  Mfg.  Co.  v.  Manufac- 
turing Co.,  416. 

Central  Nat.  Bank  v.  Insurance 
Co.,  397. 


Central  Ohio  R.  Co.  T.  Mahoney, 

304. 
Central  Ry.  of  New  Jersey  Co.  v. 

Mills,  204. 
Central    Trust    Co.    v.    Benedict, 
269. 
v.  Bridges,  269. 
v.  McGeorge,  229,  230,  295. 
v.  Milling  Co.,  270. 
V.  Railroad  Co.,  14,  270,  359, 
417,  420. 
Chaffee  v.  Hayward,  504. 
Chamberlin  v.  Railway  Co.,  423. 
Chandler,  In  re,  88. 
Chaplin,  In  re,  118. 
Chapman,  In  re,  47,  100. 
Chapman  v.  Barney,  216. 
v.  Trust  Co.,  432. 
v.  U.  S.,  479. 
Chappell,  In  re,  140. 
Chappell  v.  U.  S.,   173,  174,  457, 

462,  465. 
Charman  v.  Railroad  Co.,  297. 
Charnley  v.  Sibley,  9. 
Chase  v.  U.  S.,  166,  167. 
Chateaugay  Ore  &  Iron  Co.,  Ex 

parte,  370. 
Chatfield  v.  O'Dwyer,  442. 
Chatfield  Co.  v.  New  Haven,  264. 
Cherokee  Nation  v.  Railway  Co., 

173. 
Cbesapeake  Shoe  Co.  v.  Seldner, 

129. 
Chesapeake  &  O.  Ry.  Co.  v.  Dix- 
on, 304. 
v.  White,  278,  340. 
Chesapeake  &  Potomac  Tel.  Co. 

v.  Manning,  515. 
Chiatovich  v.  Hanchett,  301,  335. 
Chicago  Life  Ins.  Co.  v.  Needles, 

492,  493. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Mar- 
tin, 291,  297. 
Chisbolm   v.   Georgia,  351. 
Choteau  v.  Marguerite,  486. 


CASES  CITED. 


587 


[The  figures  refer  to  pages.] 


Cincinnati,  H.  &  D.  R.  Co.  v.  Mc- 
Keen,    471. 
v.  Tkiebaud,    212,    446,    462, 
472. 
Cincinnati   St.   Ry.    Co.   v.   Snell, 

517. 
Citizens'  Bank  v.  Cannon,  201. 

v.  Parker,  487. 
Citizens'    Bank    &   Trust    Co.    v. 

Gold  Co.,  230. 
City  Nat  Bank  of  Greenville  v. 

Bruce,  133. 
City  of  Detroit  v.  Dean,  249. 
v.  Railroad  Co.,  313,  314. 
City  of  Eau  Claire  v.  Payson,  242. 
City  of  Lincoln  v.  Power,  366,  367. 
City  of  Manning  v.  Insurance  Co., 

373,  37-1. 
City    of    Minneapolis    T.    Reum, 

226. 
City  of  New  Orleans  v.  Benjamin, 
241. 
v.  Gaines'  Adm'r,  243. 
v.  Quinlan,  242. 
y.  Warner,  417. 
v.  Winter,  210. 
City  of  Quincy  v.  Steel,  250. 
City  of   Superior  v.   Ripley,   243. 
City  of  Tacoma  v.  Wright,   313. 
City  of  Terre  Haute  v.  Railroad 

Co.,  285. 
Civil  Rights  Cases,  70,  258. 
Claasen,  In  re,  35. 
Claff,  In  re,  148. 
Claihorne  Co.  v.  Brooks,  13. 
Clark  v.   Bever,  2S0. 
Clarke,  Ex  parte,  183. 
Clarke  v.  Larremore,  133. 
Clearwater  v.  Meredith,  221. 
Cleveland,   C.  C.  &  I.  R.  Co.  ▼. 

McClung,  318. 
Cliffe,  In  re,  92,  100. 
Clisdell,  In  re,  148. 
Clune  v.  U.  S.,  56. 
Cobb  v.  Insurance  Co.,  344. 

v.  Overman,   120. 
Cochran  v.  U.  S.,  38. 


Cocks,  In  re,  88. 
Coffey  v.  U.  S.,  47,  63,  69,  253. 
Coffin  v.  U.  S.,  54. 
Cohen  v.   Delavina,  388. 
Cohens  v.  Virginia,  348,  482. 
Coker  v.  Mills,  306. 
Colburn  v.  Hill,  303. 
Cole,  In  re,  157. 
Cole  v.  Garland,  346. 
Coleman  v.  Martin,  407. 
Collins  v.  Ashland,  211,  213,  247, 
250. 
v.  Campbell,  312. 
Colombia  v.  Cauca  Co.,  476. 
Colorado  Cent.   Consol.  Min.   Co. 

v.  Turck,  446. 
Columbia    Water    Power    Co.    v. 

Power  Co.,  491. 
Columbian     Equipment     Co.     v. 

Trust  Co.,  413. 
Columbus  Watch  Co.  v.  Robbins, 

471,  472. 
Columbus  &  H.  R.  Co.'s  Appeal, 

416. 
Colvin  v.  Jacksonville,  200,  454. 
Comitis  v.  Parkenson,  227. 
Commercial  &  R.  Bank  of  Vicks- 

burg  v.   Slocomb,  215. 
Commonwealth     v.     Bridge    Co., 
333. 
v.  Casey,  319. 
Commonwealth     Trust     Co.      v. 

Frick,    359. 
Compton  v.  Jesup,  266. 
Conley,  In  re,  156. 
Conley  v.  Alkali  Works,  231,  358. 
Connecticut  Mut.  Life  Ins.  Co.  v. 

Trust  Co.,  11. 
Connell  v.  Smiley,  308. 
Connolly    v.    Pipe    Co.,   354,   463, 

467. 
Connors  v.  U.  S.,  5S. 
Conqueror,  The,  473. 
Consolidated  Fastener  Co.  v.  Fas- 
tener Co.,  415. 
Continental  Nat.  Bank  v.  Buford, 

207,  446. 


588 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Continental   Nat.   Bank   of   Mem- 
phis v.  Buford,  216. 

Continental    Wall    Paper    Co.    v. 
Lewis  Voight  &  Sons  Co.,  328. 

Cook  v.  Hart,  177. 
v.  U.   S.,  33. 

Cook  Co.  v.  Dock  Co.,  4S6. 

Cooke  v.  Avery,  206. 

Coonrod  v.  Kelly,  404. 

Cooper  v.  Reynolds,  239. 

Coosaw   Min.  Co.   v.  Mining  Co., 
411. 

Corbin   v.   Black   Hawk   County, 
240. 

Corbitt  v.  Bank,  296,  345. 

Corn,    In  re,    150,   156. 

Cornell  v.  Green,  398. 

Cornwall,  In  re,  122. 

Cosmopolitan  Min.  Co.  v.  Walsh, 
463,  464. 

Coudert  v.  U.  S.,  443. 

Coulter,  In  re,  129. 

Courier  Journal  Job  Printing  Co. 
v.  Brewing  Co.,  441. 

Cowell  v.  Supply  Co.,  235. 

Cox  v.  Wall,  136. 

Craemer  v.  State,  185,  43i 

Crain  v.  U.  S.,  42,  46. 

Crawford  v.  Moore,  12. 

Creagb  v.  Insurance  Co.,  339. 
v.  Society,  302. 

Crist,  In  re,  150. 

Cronin,  In  re,  94. 

Crosby  Lumber  Co.  v.  Smith,  313. 

Cross  v.  Burke,  175,  438. 
v.  North  Carolina,  24. 

Crossley  v.   California,  25. 

Crowley  v.  Christensen,  185. 
v.  U.  S.,  479. 

Cuddy,  Ex  parte,  184,  186. 

Cumming  v.  Board,  70. 

Cummings  v.  Chicago,  207,  465. 

Cunningham  v.  Bank,  442. 

D 

Dalton  v.  Insurance  Co.,  322,  325. 
Dancel   v.   Machinery  Co.,  334. 


Daniels  v.  Benedict,  401. 
Darling  v.  Berry,  78. 
Dartmouth   Sav.   Bank  v.   Bates. 

375. 
Dauchy,  In  re,  150. 
Davenport  v.  Cloverport,  70. 

v.  Dodge  Co.,  193. 

v.  Fletcher,  507. 
Davidson  v.  Lanier,  501,  507. 
Davis  v.  Schwartz,  414. 

v.  South  Carolina,  318. 

v.  Stevens,  140. 

v.  Turner,   133. 

v.  U.   S.,  50,  437. 
Dawson  v.  Trust  Co.,  523. 
De  Bara,  In  re,  5S. 
Debs,  In  re,  176. 
Defiance  Water  Co.   v.   Defiance, 

204. 
De  Hierapolis  v.  Lawrence,  237. 
Delafield.  In  re,  193. 
De    Lamar's    Nevada    Gold    Min. 

Co.  v.  Nesbitt,  209. 
Delaware  v.  Emerson,  320. 
Delaware,    L.    &   W\    R.    Co.   v. 

Frank,  224. 
Dennick  v.  Railroad  Co.,  9. 
Dennis  v.  Alachua  Co.,  323. 
Dennison  v.  Brown,  313. 
Denny  v.  Pironi,  324. 
Denver  First  Nat.  Bank  v.  Klug, 

431. 
Deputron  v.  Young,  250. 
Deshler  v.  Dodge,  242. 
Des  Moines  &  M.  R.  Co.,  Ex  parte, 

238,  359. 
Despeaux  v.  Railroad  Co.,  365. 
Detroit  City  Ry.  Co.  v.  Guthard, 

492. 
Devoe  Mfg.  Co.,  In  re,  20. 
Dial  v.  Reynolds,  390. 
Dibble  v.  Land  Co.,  13. 
Dick  v.  Foraker,  237. 
Dietzsch  v.  Huidekoper,  390. 
Dillard  v.  Collins,  142. 
Dillon,  In  re,  119. 
Dimmick  v.  Tompkins,  438. 


CASES  CITED. 


5S(J 


[The  figures  refer  to  pages.] 


Dinet  v.  Delavan,  329. 
Dodge  v.  Knowles,  509. 

v.  Tul  leys,    224. 
Doscher,  In  re,  140. 
Douglass  v.  Pike  Co.,  14. 
Dower  v.  Richards,  486. 
Downes  v.  Bidwell,  2.~>3. 
Dow's  Estate,  In  re,  155. 
Doyle  v.  Clark,  212. 

v.  Insurance  Co.,  279. 
Dresser  v.  Illuminating  Co.,  211. 

v.  Lumber  Co.,  118. 
Dudley  v.  Corporation,  87. 
Duguid,  In  re,  84. 
Dunbar  v.  Dunbar,  121. 

v.  U.  S.,  54,  57. 
•Duncan,  In  re,  94,  178. 
Duncan  v.  Landis.  140,  441. 
Dunlop  v.  U.  S.,  39. 
Dunningan,  In  re,  84. 
Dupree,  In  re,  104. 
Durland  v.  U.  S.,  45.  48,  58. 
Dushane  v.  Benedict,  354,  361. 
Dvorak,  In  re,  147. 
Dwigbt  v.  Humphreys,  385. 

v.  Merritt,  357. 
Dygert  v.  Trust  Co.,  16. 


E.  A.  Chatfield  Co.  v.  New  Haven, 

264. 
East  Tennessee  V.  &  G.  R.  Co.  v. 
Grayson.  306. 
v.  Telephone  Co.,  345. 
Eaton,  In  re,  155. 
Eaton  v.  Railroad  Co.,  376. 
Eddy  v.  Casas,  301. 
Edgington  v.  U.  S.,  51,  55. 
Edrington  v.  Jefferson,  347. 
Edward  P.  Allis   Co.   v.   Lumber 

Co.,  399. 
Edwards  v.  Bates  Co.,  199. 
Egan  v.  Hart,  486. 
Eggert,  In  re,  140,  439. 
Eilenbecker  v.  District  Court,  32. 
Einstein  v.  Railroad  Co.,  224. 
Eldred  v.  Car  Co.,  395. 


Eldridge,  In  re,  123. 

Elgin  Wind  Power  &  Pump  Co.  v. 

Nichols,  401. 
Ellenwood  v.  Chair  Co.,  235. 
Elliott  v.  Toeppner,  114,  439,  441. 
Ellis  v.  Davis,  192,  194. 
Empire  Metallic  Bedstead  Co.,  In 

re.  102. 
Emsheimer  v.  New  Orleans,  244, 

245,  471. 
England  v.  Russell,  194. 
Erie  R.  Co.  v.  Purdy,  492. 
Erwin  v.  U.  S.,  ^'.». 
Estis  v.  Trabue,  505. 
Ethier,  In  re,  142. 
Eustis  v.  Bolles,  493. 
Everett  v.  School  Dist,  274. 
Evers  v.  Watson,  297. 
Ewing  v.  Burnham,  356. 
Excelsior    Wooden    Pipe    Co.   v. 

Bridge  Co.,  204,  208,  249,  255, 

457. 

F 

Factors'   &   Traders'   Ins.   Co.    v. 

Murphy,    143,   488. 
Failey  v.  Talbee,  398. 
Falk  v.  Publishing  Co.,  255. 
Fallbrook    Irr.    Dist.    v.    Bradley, 

487. 
Fanshawe  v.  Tracy,  387. 
Farley  v.  Kittson,  397. 
Farmers'    Loan    &    Trust    Co.    v. 

Railroad  Co.,  270,  405. 
Farmers'  Nat.  Bank  v.  McElhin- 

ney,  65. 
Farmers'  &  Merchants'  Ins.  Co.  v. 

Dobney,  492. 
Farmington  Village  Corp.  v.  Pills- 
bury,  248. 
Farrar  v.  Bernheim,  416. 
Faust  v.  U.  S.,  39. 
i  Fayerweather  v.  Ritch,  238. 
Federal    Mfg.    &   Printing   Co.    v. 

Bank  Note  Co..  40G. 
Feibelman  v.  Packard,  205,  505. 
Feldstein,  In  re,  156. 
Felsenheld  v.  U.  S.,  471. 


590 


CASES    CITED. 


[The  figures  refer  to  pages.] 


Fenn  v.  Holme,  194,  354. 

Ferguson,   In  re,   100. 

Fidelity  Ins.  Trust  &  Safe  Deposit 

Co.  v.  Huntington,  302. 
Fidelity  Mut.  Life  Ass'n  v.  Met- 

tler,  4G7. 
Fidelity  &  Deposit  Co.  v.  Lumber 

Co..  52,  : 
Fiegenbaum,  In  re,  '148. 
Field  v.  Paving  Co.,  402. 
Fife,  In  re.  122. 
Fife  v.  Whittell,  330. 
Files  v.  Davis,  270. 
Finance    Committee    v.    Warren, 

413. 
First  Nat   Bank  v.   Prager,  277, 
322. 
v.  Trust  Co.,  225. 
Fishback  v.  Telegraph  Co.,  5,  201, 

202. 
Fisbburn  v.   Railroad  Co.,  372. 
Fisber  v.  Cusbman,  440. 

v.  Perkins,  484. 
Fisk,  Ex  parte,  11. 
Fisk  v.  Henarie,  309,  338. 
Fitzgerald  v.  Green,  24. 
Fitzpatrick  v.  U.  S.,  51,  52. 
Fixen,  In  re,  112,  117. 
Florida  Cent.  &  P.  R.  Co.  v.  Bell, 

204,  220,  445. 
Foerst,  In  re,  126. 
Folsom   v.    Township   Ninety-Six, 
14. 
v.  U.  S.,  444,  472. 
Foreman  v.  Burleigh,  442. 
Forsyth  v.  Hammond,  13,  473,  474. 

v.  Vebmeyer,  157. 
Ft.  Leavenworth  R.  Co.  v.  Lowe, 

24. 
Ft.  Wayne  Electric  Corp.,  In  re, 

98,  117. 
Foulk  v.  Gray,  294. 
Fowle  v.   Park,   151. 
Fox  v.  Railway  Co.,  334,  337. 
Franks,  In  re,  133. 
Fraser  v.  Jennison,  303. 
Frecbe,  In  re,  158. 


Freeman  v.  Surety  Co.,  231,  232. 

Freese  v.  Kemplay,  307. 
Frelinghuysen  v.  Baldwin,  65. 
French  v.  Hopkins,  485. 
Freuud,  In  re,  154. 
Frice,  In  re,  148. 
Friedenstein  v.  U.  S.,  57,  63. 
Friedly  v.  Giddings,  374. 
Frisbie  v.  U.  S.,  40. 
Funk,  In  re,  84. 
Furrer  v.  Ferris,  414 

G 

Gableman   v.    Railroad   Co.,    209, 

288. 
Gage  v.  Carraber,  295. 
Gaines  v.  Agnelly,  405. 

v.  Fuentes,  270. 
Gale  v.  Association,  231. 
Galveston,  H.  &  S.   A.  R.  Co.  v. 

Gonzales,  231. 
Gammon,  In  re,  155. 
Gann  v.  Railroad  Co.,  311. 
Garcewicb,  In  re,  130. 
Gardes  v.  U.  S.,  42. 
Garrison,  In  re,  88. 
Gasquet  v.  Brewing  Co.,  415. 
Gay,.  In  re,  90. 
Gay  v.  Parpart,  507. 
Gaylord,  In  re,  155. 
Gay  Mfg.  Co.  v.  Camp,  416. 
Geer  v.  Alkali  Works,  305,  306. 
Gelpcke  v.  Dubuque,  14. 
Generes  v.  Campbell,  369. 
German  Ins.  Co.  v.  Hearne,  472. 
German   Nat.    Bank   v.   Speckert, 

511. 
German   Savings  &  Loan  Soe.   v. 

Dormitzer,  290,  291. 
Gerson,  In  re,  120. 
Gibson  v.  Mississippi,  316. 
Giddings  v.  Freedley,  374. 
Gilbert  v.  Murphy,  400. 
Giles  v.  Harris,  406. 

v.  Teasley,  493. 
Gillette  v.  Dobeny,  398. 
Gillum  v.  Stewart,  357. 


CASES   CITED. 


591 


[The  figures  refer  to  pages.] 


Gilman  v.  Lockwood,  80. 

Girard  Life  Ins.  Annuity  &  Trust 

Co.  v.  Cooper,  415. 
Gladding,  In  re,  145. 
Glass,   In  re,  149. 
Glass  v.  Concordia,  241. 
Gleason  v.  Florida,  518. 
Glenn  v.  Sumner,  371. 
Glenny  v.  Langdon,  136. 
Glide,  The,  68. 
Glover  v.  Shepperd,  342.. 
Goddard  v.  Mailler,  234. 

v.  Ordway,  510. 
Goldey  v.  Morning  News,  345. 
Goldman  v.  Smith,  112. 
Goldsby  v.  U.  S.,  50,  54. 
Goodale,  In  re,  149. 
Goodman,  In  re,  84. 
Goodman  v.  Niblack,  237. 
Good  Shot  v.  U.  S.,  437,  460,  473. 
Goodwin  v.  Fox,  11. 
Goodyear   Dental   V.   Co.   v.   Fol- 

som,  389. 
Gordon  v.  Jennings,  85. 
Grace  v.  Insurance  Co.,  5. 
Graham  v.  Swayne,  422. 
Grame  v.  Assurance  Co.,  486. 
Grand  Rapids  &  I.  R.  Co.  v.  Os- 

born,  487. 
Grand  Trunk  R.  Co.  v.  Twitchell, 

311. 
Grant  v.  Insurance  Co.,  404. 
Graver  v.  Faurot,  471. 
Graves  v.  Corbin,  303. 
Gray  v.  Railroad  Co.,  389. 
Great  Falls  Mfg.  Co.  v.  Attorney 

General,  173. 
Great   Southern    Fireproof   Hotel 

Co.  v.  Jones,  216. 
Great  Western  Telegraph  Co.  v. 

Burnham,  484,  517. 
Greeley  v.  Lowe,  236,  237,  294. 
Green  v.  Bogue,  402. 

v.  Turner,   194. 
Greenberg,  In  re,  150. 
Greene  v.  Henkel,  28,  31,  178. 
Greenewald,  In  re,  85. 


Gregory  v.  McVeigh,  484. 

v.  Pike,  393. 
Grether   v.   Wright,  406. 
Grimes,  In  re,  90. 
Grimley,  In  re,  176. 
Griswold  v.  Hazard,  262. 
Grover  &  Baker  Sewing  Mach.  Co. 

v.  Machine  Co.,  5. 
Grubbs-Wiley  Grocery  Co.,  In  re, 

86. 
Guarantee  Co-  v-  Hanway,  333. 

v.  Trust  Co.,  497. 
Guarantee  Co.  of  North  America 

v.  Trust  Co..  304. 
Gulf  &  S.  I.  I?    Co.  v.  Hewes,  493. 
Gumbel  v.  Pitiiin,  267. 
Gutwillig,  In  re,  96. 

H 

Haberman  Mfg.  Co.,  In  re,  523. 

Haensell,  In  re,  142. 

Hagood  v.  Southern,  351. 

Hair  v.  Burnell,  271. 

Hall  v.  Agricultural  Works,  337. 

v.  U.   S.,   53. 
Hamilton  v.  Mining  Co.,  412. 
Hamilton  Gaslight  &  Coke  Co.  v. 

Hamilton,  206. 
Hanchett  v.  Blair,  405. 
Handley  v.  Stutz,  202. 
Hanks  Dental  Ass'n  v.  Crown  Co., 

365. 
Hanna  v.  Maas,  369. 
Hanover  Nat.  Bank  v.  Moyses,  78, 
79,  80,  91,  115. 
v.  Smith,  277. 
Hanrick  v.  Hanrick,  309. 
Hans  v.  Louisiana,  350. 
Hansen,  In  re,  159. 
Hardenbergh  v.  Ray,  213. 
Hardwick  v.  Kean,  324. 
Hare,  In  re,  1 
Hargadine-McKittrick  Dry  Goods 

Co.  v.  Hudson,  158. 
Harkrader  v.  Wadley,  390. 
Harmanson  v.  Bain,  136. 


592 


CASES    CITED. 


[The  figures  refer  to  pages.] 


Harrison  v.   Graham,   262. 

v.  Hughes.  264. 
Kartell  v.  Tilghman,  208. 
liarter  Tp.  v.   Keruochan,  336. 
Hartford  Fire  Ins.  Co.  v.  liailroad 

Co.,    15,    10. 
Hartman,  In  re,  135. 
Hartman  v.  Greeuhow,  483.» 
Harvey,  In  re,  144. 
Haseltine  v.  Bank,  517. 
Haskins  v.  Railway  Co.,  507. 
Hatch  v.  Bancroft-Thompson  Co., 

405. 
Haussknecht  v.  Claypool,  9. 
Havnor  v.  New  York,  518. 
Haynes,  In  re,  36. 
Hazard  v.  Durant,  399. 
Headley,  In  re,  117. 
Hegler  v.  Faulkner,  322. 
Helms  v.  Railroad  Co.,  297,  305. 
Helwig  v.  U.  S.,  61. 
Henderson  v.  Cabell.  291. 
Henderson's      Distilled      Spirits, 

Case  of,  63,  64. 
Hennessey  v.  Drug  Co.,  228. 
Henry  v.  Sowles,  65. 
Henschel,  In  re,  128. 
Herrman,  In  re,  148. 
Hess  v.  Reynolds,  341. 
Hewitt  v.  Filbert,  510. 
Hey  man,  In  re,  119. 
Hickman  v.  Railroad  Co.,  340. 
Hickory  v.  U.  S.,  44,  51,  52. 
Hicks  v.  U.  S.,  52. 
Hijo  v.  U.   S.,  479. 
Hill,  In  re,  92. 
Hill  v.  Hite,  13. 

v.  Kuhlman,  266. 
v.  Phelps,  423. 
v.  Railroad  Co.,  354. 
v.  U.  S.,  163. 
Hinchman  v.  Kelley,  398. 
Hirseh,  In  re,  91. 
Hirschman,   In  re,   122. 
Hixon,  In  re,  151. 
H.  J.  Quimby  Freight  Forwarding 
Co.,  In  re,  87. 


Hobson  v.  McArthur,  884. 

Hodges  v.  Kimball,  361. 

Hoeffner  v.  U.  S.,  29. 

Hoge  v.  Office,  308. 

Hohorst,  In  re,  230. 

Holden,  In  re,  141. 

Holden  v.  Stratton,  439,  442,  443, 

477. 
Holland  v.  Challen,  379. 
Hollins  v.  Iron  Co.,  195. 
Holmes  v.  Goldsmith,  243. 
v.  Jennison,  194. 
v.  U.  S.,  162. 
Holt  v.    Manufacturing   Co.,   255, 

258.  447. 
Holton  v.  Guinn,  405. 
Home  Land  &  Cattle  Co.  v.  Mc- 

Namara,  416. 
Home  Life  Ins.  Co.  v.  Dunn,  338. 
Hooe  v.  Jamieson.  210,  224. 
Hoover,  In  re,  159. 
Hopkins  v.  Grimshaw,  12. 
v.  Stave  Co.,  224. 
v.  U.  S.,  263. 
Hopt  v.  Utah,  52,  54. 
Horn  v.  Dock  Co.,  402. 
v.  Lockhart,  224. 
Horner  v.  U.  S.,  30,  462,  465. 
Hosmer  v.  Jewett,  130. 
Hovey  v.  Elliott,  395. 

v.  McDonald,  508,  510. 
Howard  v.  Crompton,  363. 
v.  Fleming,  179. 
v.  Reefs,  330. 
v.  U.  S.,  34,  205,  476. 
Howden,  In  re,  150. 
Hubbard  v.   Tod,  473. 
Hudson  v.  Parker,  460. 

v.  Randolph,  404. 
Hughey  v.  Sullivan,  372. 
Huguley  Mfg.  Co.  v.  Cotton  Mills, 

435,  475. 
TTnkill  v.  Railroad  Co.,  297. 
Hull,  In  re,  1?»^. 
Humes  v.  Ft.  Smith,  200. 

v.  U.   S.,  54. 
Hunnicutt  v.  Peyton,  370. 


CASES   CITED. 


591 


[The  figures  refer  to  pages.] 


Hunter  v.  Martin,  4S2. 
Huntington  v.  Laidley,  404,  456. 
Huskins  v.  Railroad  Co.,  336. 
Hutchinson  v.  Le  Roy,  440. 

v.  Otis,  440,  442. 
Hyatt  v.  People,  177. 
Hyde  v.  Ruble,  303. 
Hyman,  In  re,  156. 
Hyman  v.  Charles,  393. 

I 

Iasigi  v.  Vande  Carr,  72. 

Idaho  &  O.  Land  Co.  v.  Bradbury, 

515. 
Idzall,  In  re,  154,  156. 
Illinois  Car  &  Equipment  Co.  v. 

Wagon  Co.,  371. 
Illinois   Cent.    R.   Co.    v.   Adams, 

206,  250,  459,  467. 
Inbusch  v.  Farwell,  222. 
Independent  School  Dist.  of  Sioux 

City  v.  Rew,  241. 
Indiana  v.  Railway  Co.,  271,  285. 

v.  Glover,  212. 
Indiana  Mfg.  Co.  v.  Koehne,  206. 
Indianapolis   &   St.   L.  R.   Co.   v. 

Horst,  360,  372. 
Ingle  v.  Jones,  411. 
Inglehart  v.  Stansbury,  506. 
Ingram  v.  Wilson,  440. 
Interior  Const.  &  Imp.  Co.  v.  Gib- 

ney,  230,  456. 
International  Tooth  Crown  Co.  v. 

Association,  365. 
Interstate  Commerce  Commission 
v.  Baird,  444,  468. 
v.  Railroad  Co.,  443. 
Irvine  Co.  v.  Bond,  248. 
Isaacs  v.  U.  S.,  52. 

J 
Jackson  &  Sharp  Co.  v.  Pearson, 

311. 
Jacob  v.  U.  S.,  65. 
Jacobi,  Ex  parte,  437. 
Jacobi  v.  Alabama,  492. 

Hughes  Fed.  Jur. — 38 


Jacobs  v.  George,  510. 

Janecki   Mfg.   Co.   v.   McElwaine, 

151. 
Jaquith  v.  Alden,  118,  132. 

v.  Rowley,   135,   136. 
Jehu,  In  re,  91,  125. 
Jenks  v.  Brewster,  269. 
Jennes  v.  Landes,  384. 
Jenns   v.   Landes,  227. 
Jewett    Car   Co.    v.    Construction 

Co.,  354. 
J.   L.    Mott   Ironworks   v.    Manu- 
facturing Co.,  412. 
John  A.  Etheridge  Furniture  Co., 

In  re,  80,  94,  112. 
Johnson  v.  Christian,  272. 

v.  Ford,  225. 

v.  Insurance  Co.,  492. 

v.  Keith,  517. 

v.  Manufacturing  Co.,  333. 

v.  Wald,  98. 
Johnston  v.  U.  S.,  43. 
Jolly  v.  U.   S.,  57. 
Jones,  Ex  parte,  208,  216. 
Jones,  In  re,  US. 
Jones  v.   Andrews,  228,  272,  396. 

v.  Fidelity  Co.,  354. 

v.  League,  247. 

v.  Mosher,    336. 

v.  U.  S.,  33. 
Joseph  Dry  Goods  Co.  v.  Hecht, 
225,  522. 

K 

Kanouse  v.  Martin,  196. 
Kansas  v.  Colorado,  399. 
Kansas  City,  Ft.  S.  &  M.  R.  Co. 

v.  Daughtry,  333. 
Keasbey  &   Mattison  Co.,   In  re, 

230,  231. 
Kelley  v.  Boettcher,  385. 
Kelly.  In  re,  109. 
Kennard  v.  Nebraska,  487. 
Kennedy   v.   Gibson,   70. 
Kenney,  In  re,  133. 
Kentucky    Nat   Bank   v.   Carley, 

149. 


594 


CASES   CITED. 


[The  figures  refer  to  page3.] 


Kenyon,  In  re,  156. 
Kern  v.  Huidekoper,  340. 
Kerrison  v.  Stewart,  224. 
Keyser  v.  Lowell.  435,  446. 
Keystone  Manganese  &  Iron  Co. 

v.    Martin,   407. 
Kidder  v.  Featteau,  344. 
Kilgore  v.  Norman,  250. 
Kimberly  v.  Arms,  413,  414. 
King  v.  Worthington,  11. 
Kingsbury  v.  Kingsbury,  277. 
Kinkead,  In  re,  84. 
Kinney,  Ex  parte,  179. 
Kinney  v.  Association,  325. 
Kipley  v.  Illinois,  486. 
Kirby  v.  Fountain  Co.,  429. 

v.  Railway  Co.,  280,  285,  340. 

v.  Soda  Fountain  Co.,  467. 

v.  U.  S.,  49. 
Kirwan  v.  Murphy,  511. 
Knight  v.  Railway  Co.,  334. 
Knott  v.  Putnam,  159. 
Knox  Co.  v.  Bank,  14. 
Knox  Rock  Blasting  Co.  v.  Stone 

Co.,  397. 
Kohl  v.  Lehlback,  185. 

v.  U.  S.,  194. 
Koon  v.  Insurance  Co.,  372, 
Krippendorf  v.  Hyde,  274. 
Kurtz  v.  Moffitt,  199. 


Labette  County  Com'rs  v.  U.  S., 

271. 
Ladd  v.  Oxnard,  386. 
Lafayette  Co.  v.  Wonderly,  272. 
Lafferty,  In  re,  123. 
Lafleche,  In  re,  156. 
Laird,  In  re,  129. 
Lake  Co.  v.  Dudley,  250. 
Lake   County   Com'rs  v.   Dudley, 
241. 
v.  Schradsky,  248. 
Lake  Nat.  Bank  v.  Bank,  65. 
Lake   Shore   &   M.    S.   R.    Co.   v. 

Prentice,  16. 
Lamar  v.  Micou,  211. 


Lamaster  v.  Keoler,  376. 
Lamm  v.  Copper  Co.,  305,  307. 
Lampasas  v.  Bell,  463,  466. 
Lancaster,  In  re,  183. 
Land  Co.  of  New  Mexico  v.  El- 
kins,  227. 
Lange  v.  Railroad  Co.,  362. 
Lanier  v.  Nash,  248. 
Lansing  v.  Manton,  111. 
Lanz  v.  Randall,  211. 
Latta  v.  Kilbourn,  404. 
Lau  Ow  Bew,  Ex  parte,  472. 

v.  U.  S.,  474. 
Laura,  The,  65. 
Lazoris,  In  re,  128. 
Leather       Manufacturers'       Nat. 

Bank  v.  Cooper,  71. 
Ledbetter  v.  U.  S.,  39,  58. 
Lees  v.  U.  S.,  56,  61,  63,  253. 
Lehigh  Min.  &  Mfg.  Co.,  In  re, 
456. 

Lehigh  Min.  &  Mfg.  Co.  v.  Kelly, 
248. 

Leidligh  Carriage  Co.  v.  Stengel, 
79. 

Leigh  v.  Green,  492. 

Lengel  v.  Refining  Co.,  238. 

Lennon,   Ex  parte,  171,  176,  207, 
431,  438. 

Le  Sassier  v.  Kennedy,  208. 

Leslie,  In  re,  150,  154. 

Levin,  In  re,  126. 

Lewensohn,  In  re,  128. 

Lewis,  In  re,  184. 

Lewis  v.  U.  S.,  143. 

L.  Humbert  Co.,  In  re,  107,  112. 

Lincoln  Co.  v.  Luning,  279,  349. 

Lincoln  Tp.  v.  Iron  Co.,  372. 

Lindsay  v.   Bank,  354. 

Linehan  Ry.  Transfer  Co.  v.  Pen- 
dergrass,  200. 

Lipke,  In  re,  125. 

Lipman,  In  re,  123. 

Little  Ann,  The,  62. 

Little  v.  Giles,  307. 

Little  Rock  &  M.  R.  Co.  v.  Rail- 
road Co.,  171. 


CASES   CITED. 


595 


[The  figures  refer  to  pages.] 


Little  York  Gold  Washing  &  Wa- 
ter Co.  v.  Keyes,  203. 

Livingstone  v.  Heineinan,  442. 

Lockwood  v.  Bank,  146. 

Loeb  v.  Columbia  Tp.,  468. ,  ' 

Loeb  v.  Township,  463. 

v.  Trustees,  14,  242.  * 

Logan,  In  re,  150. 

Logan  v.  Goodwin,  359. 

v.  U.  S.,  12,  44,  45,  51.  < 

Loney,  In  re,  24,  182. 

Loop  v.  Winter,  332,  340,  346. 

Lord  v.  Railroad  Co.,  334. 

Louisiana  v.  Texas,  350. 

Louisville  C.  &  C.  R.  Co.  v.  Let- 
son,  215. 

Louisville  E.  &  St.  L.  R.  Co.  v. 
Wilson,  85. 

Louisiana,   N.  A.  &  C.  R.  Co.  v. 
Pope,  471. 
v.  Trust  Co.,  218. 

Louisville  Public  Warehouse  Co. 
v.    Collector,   429,   444. 

Louisville  Trust  Co.  v.  Comingor, 
113. 
v.  Knott,  432. 

Louisville    Underwriters,    In    re, 
233. 

Louisville  &  N.  R.  Co.  v.  Ide,  304. 
v.  Wangelin,  302. 

Lovell  v.  Johnson,  405. 

Lowndes  v.  Huntington,  15. 

Lucas  v.  Brooks,  12. 

Lucker  v.  Assurance  Co.,  344. 

Luckhardt,  In  re,  86. 

Luhrs  v.  Hancock,  375. 

Lyon  County  v.  Bank,  241. 

Lytle  v.  Lansing,  14. 

M 

Mabey,  The,  524. 
McBryde,  In  re,  121. 
McCain  v.  Des  Moines,  204,  205. 
McCarty,  In  re,  153. 
McCauley,  In  re,  122. 
McClaughry  v.  Deming,  176. 
McConihay  v.  Wright,  194. 


McCorniick  v.  Bank,  488. 
McCormick  Harvesting  Mach.  Co. 

v.  Walthers,  230. 
McCrea  v.  Parsons,  364,  369. 
McDonnell  v.  Jordan,  338. 
McDowell  v.  Kurtz,  389. 

v.  U.  S.,  21. 
McElroy  v.  U.  S.,  42. 
McElwee  v.   Lumber  Co.,  372. 
Macfarland  v.  Brown,  515. 

v.  Byrnes,  515. 
McGahan  v.  Anderson,  146. 
MacGinniss  v.  Mining  Co.,  297. 
McGourkey  v.  Railway,  497. 
McGregor  v.  Trust  Co.,  423. 
McKenzie,  In  re,  510,  523. 
Mackin  v.  U.  S.,  35. 
McKnight  v.  James,  484. 
McLish  v.  Roff,  433. 
McMicken  v.  Perin,  416. 
McVeagh  v.  Waterworks  Co.,  401, 

402. 
Magann  v.  Segal,  420. 
Mahon  v.  Somers,  296. 
Mahoney  v.  Ward,  94. 
Mallett  v.  North  Carolina,  492. 
Malony  v.  Adsit,  369. 
Manderson,  In  re,  174. 
Mansfield,  C.  &  L.  M.  R.  Co.  T. 

Swan,  5. 
Maples,  In  re,  158. 
Marine  Machine  &  Conveyor  Co., 

In  re,   82,   104. 
Markham  v.  U.  S.,  40. 
Marrs  v.  Felton,  304. 
Marshall   Paper   Co.,   In   re,   147, 

153. 
Marshall  v.  Railroad  Co.,  215. 
Martin  v.  Hunter,  482. 

v.  Railway    Co.,    333,    334. 
v.  Snyder,  301. 
Marvin,   In   re,   84. 
Mason,  In  re,  83,  91. 
Mason  v.   Dullagham,  224. 
Massachusetts  &  S.  Const.  Co.  r. 
Cane  Creek  Tp.,  224. 
v.  Township,    224. 


596 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Masterson  v.  Herndon,  506. 

Mather  v.  Coe,  114. 

Mattingly  v.  Railroad  Co.,  322. 

Mattox  v.  U.  S.,  50,  57. 

May  v.  Tenney,  13. 

Mayer,  In  re,  126. 

Mayfield,  Ex  parte,  186. 

Maynard  v.  Hecht,  454. 

Mayo   v.    Dockery,   287. 

Means  v.  Dowd,  133. 

Mears  v.  Lockbart,  410. 

Mecke  v.  Mineral  Co.,  306,  337. 

Medley,  In  re,  182,  186. 

Meister  v.  Moore,  15. 

Mellen  v.  Iron  Works,  237,  239. 

Memphis  Sav.  Bank  v.  Houchens, 
269. 

Memphis  &  C.  R.  Co.  v.  Alabama, 
218. 

Menge   v.  Warringer,   374. 

Mercantile  Mut.  Ins.  Co.  v.  Fol- 
som,  500. 

Mercantile  Nat.  Bank  v.  Carpen- 
ter, 399. 

Mercantile  Trust  Co.  v.  Railroad 
Co.,  404. 

Merchants'  Cotton  Press  &  Stor- 
age Co.  v.  Insurance  Co.,  299, 
306. 

Merchants'  &  Manufacturers' 
Nat.  Bank  v.  Pennsylvania,  13. 

Mercur,  In   re,  93. 

Meriitt  v.  College,  464. 

Metcalf  v.  Barker,  100,  110,  134. 
v.  Watertown,  9. 

Metsker  v.  Bonebrake,   91. 

Mexican  Cent.   R.   Co.  v.  Dutlne, 
362. 
v.  Eckman,  213,  432. 
v.  Pinkney,  359. 

Mexican  Nat.  R.  Co.  v.  Davidson, 
289,  294,  295. 

Meyer,  In  re,  102. 

Meyers,   In  re,  148,  160. 

Miller   v.   Association,   388. 
v.  Bank,  291. 


Mingo  Valley  Creamery  Ass'n,  In 

re,  105. 
Minnesota  v.  Brundage,  180,  181. 

v.  Securities  Co.,  223,  286. 
Minnesota    Co.    v.    St.   Paul   Co., 

273. 
Minor  v.  Happersett,  211. 
Mirzan,  Ex  parte,  183. 
Mississippi    Mills    v.    Cohn,    240, 

379. 
Mississippi  &  M.  Ry.  Co.  v.  Ward, 

200. 
Mississippi  &  Rum   River  Boom 

Co.  v.  Patterson,  193. 
Missouri  v.  Dockery,  486. 
Missouri,  K.  &  T.  R.  Co.  v.  Elli- 
ott, 484. 
Missouri,   K.   &   T.  Trust  Co.  v. 

Krumseig,   15. 
Missouri  Pac.  Ry.  Co.  v.  Fitzger- 
ald, 346. 
v.  Railroad   Co.,   399. 
Mitchell  v.  Furman,  466. 

v.  U.  S.,  210. 
Moch  v.  Bank,  120. 
Moelle  v.  Sherwood,  395,  422. 
Monroe,  In  re,  153. 
Monroe  v.  Williamson,  337. 
Montana  Min.  Co.  v.  Milling  Co., 

511. 
Montague  &  Co.  v.  Dowry,  263. 
Montgomery,   In  re,  174. 
Montgomery   County   v.   Cochran, 

311,  314. 
Moore,   In  re,  120. 
Moore  v.  Missouri,  47. 
Morales,   In  re,   121. 
Moran  v.  Dillingham,  427. 

v.  Sturges,   390. 
Morgan's  D.  &  T.  R.  &  S.  S.  Co. 

v.  Railroad  Co.,  274. 
Morning  Journal  Ass'n  v.  Smith, 

360. 
Morris  v.  Gilmer,  212,  247,  250. 
Morrow,  In  re,  154. 
Moses  v.  Bank,  9. 


CASES   CITED. 


597 


[The  figures  refer  to  pages.] 


Motes  r.  U.S.,  49,  59,  463,  464. 

Moulton  v.  Coburn,  102. 

Mower  v.  Fletcher,  517. 

Mowrey  v.  Kailroad  Co.,  387. 

Moyer,  In  re,  100. 

Mudd,  In  re,  151. 

Mueller  v.  Nugent,  110,  135,  439. 

Mullen  v.  Beef  Co.,  484. 

Muller,  In  re,  76. 

Muller  v.  Dows,  420. 

Mullin  v.  U.  S.,  205. 

Municipal   Inv.   Co.   v.   Gardiner, 

238. 
Murdock  v.  Memphis,  493. 
Murphy  v.  Massachusetts,  47. 
Murray,  In  re,  91. 
Muse  v.  Hotel  Co.,  462,  465. 
Mussina  v.  Cavazos,  501,  504. 
Mutual  Life  Ins.  Co.  v.  McGrew, 

4S9,  492. 
Mutual  Reserve  Fund  Life  Ass'n 

v.  Phelps,  268. 
Myers  v.   Murray,  Nelson  &  Co., 

329. 
Myrick  v.  Railway  Co.,  16. 

N 

Nash  v.  Ingalls,  398. 

Nashua  &  L.  R.  Corp.  v.  Railroad 

Corp.,  219,  330. 
Nashville,  C.  &  St.  L.  R.  Co.  v. 
Alabama,  32. 
v.  McConnell,  200. 
Natal  v.  Louisiana,  508. 
National  Bank  v.  Allen,  202. 
National    Bank    of    Jefferson    v. 

Fore,  71. 
National    Cash    Register    Co.    v. 

Leland,  365. 
National   Exch.   Bank   v.   Peters, 

452. 
National  Foundry  &  Pipe  Works 

v.  Supply  Co.,  472. 
National  Nickel  Co.  v.  Syndicate, 

419. 
National  S.  S.  Co.  v.  Tugman,  216, 

324,  343. 


National  Surety  Co.  v.  Bank,  194, 

195. 
Neagle,  In  re,  179,  1S2,  184,  186. 
Neal  v.  Delaware,  69,  315. 
Neale  v.  Foster,  313. 
Nederland  Life  Ins.  Co.  v.  Hall, 

360. 
Neel  v.  Pennsylvania  Co.,  211. 
Nelson,  In  re,  92,  93. 
Nelson  v.  U.  S.,  40. 
Nester  v.  Match  Co.,  264. 
Neustadter  v.  Dry  Goods  Co.,  94. 
Nevada  Nickel  Syndicate  v.  Nick- 
el Co.,  419. 
Newcomb  v.  Wood,  372. 
New  Hampshire  v.  Louisiana,  350. 
New  Jersey  Steel  &  Iron  Co.  v. 

Chormann,   234. 
Newman  v.    Schwerin,  334. 
New  Orleans  v.  Benjamin,  472. 

v.  Fisher,    268. 
New  Orleans,  M.  &  T.  R.  Co.  v. 

Mississippi,    204. 
New  Orleans  Pac.  Ry.  Co.  v.  Par- 
ker, 201. 
New  Orleans,  S.  F.  &  L.  R.  Co. 

v.  Delamore,  488. 
New  Orleans  Waterworks  v.  Re- 
fining Co.,  487. 
New  Orleans  Waterworks  Co.  v. 
Louisiana,   486. 
v.  New  Orleans,  224. 
New   Providence   Tp.   v.   Halsey, 

248. 
New  York  v.  Bennett,  316. 
New  York  Cent.  R.  Co.  v.  Lock- 
wood,  7,  16. 
New  York  Cent.  &  H.  R.  R.  Co.  v. 

New  York,  492. 
New     York     Continental     Jewall 
Filtration  Co.  v.  Sullivan.  'M'Q. 
New    York    Economical    Printing 

Co..  In  re,  129. 
New  York  Life  Ins.  Co.  v.  Bangs, 

237. 
New  York  &  N.  E.  K.  Co.  v.  Hyde, 
370. 


598 


CASES    CITED. 


[The  figures  refer  to  pagea.J 


New   York   &  W.  Water  Co.,   In 

re,  87. 
Nichols   v.    Nichols,   211. 
Nielsen,  Ex  parte,  177,  178. 
Noesen,   In  re,  122. 
Norris  v.  Jackson,  500. 
North  American  Land  &  Timber 

Co.  v.   Watkins,   388. 
North       American      Trading      & 

Transp.  Co.  v.  Smith,  429. 
North    American    Transportation 

&  Trading  Co.  v.  Morrison,  198. 
North  Carolina  v.  Gosnell,  319. 
Northern  Pac.   R.  Co.  v.  Amato, 
47(5. 
v.  Soderberg,  209,  435. 
V.  U.  S.,   2G4. 
Northern  Securities  Co.  v.  U.  S., 

263,  468. 
Northwestern  Fuel  Co.  v.  Brock, 

421. 
Northwestern  Union  Packet  Co.  v. 

Clough,  12. 
Norton  v.  Hood,  129,  130. 

0 

Oakley  v.  Goodnow,  296,  488. 

Ober  v.  Gallagher,  222. 

Occidental  Consol.  Min.  Co.  v. 
Tunnel  Co.,  230. 

O'Dowd  v.  Russell,  519. 

O'Hara  v.  McConnell,  394. 

Ohio  v.  Thomas,  24. 

Ohio  &  M.  R.  Co.  v.  Wheeler, 
218,  219. 

Omaha  Horse  Ry.  Co.  v.  Tram- 
way Co.,  290. 

O'Neal  v.  U.  S.,  431,  448. 

Oregon  R.  &  Nav.  Co.  v.  Balfour, 
448. 

Oregon  Short  Line  Case,  288. 

Oregon  Short  Line  &  U.  N.  R. 
Co.  v.  Skottowe,  287. 

O'Reilly  v.  Edrington,  507. 

Ornelas  v.  Ruiz,   176. 

Osborne,  In  re,  149. 


Osborne  v.  Detroit,  356. 

v.  Florida,  4S0. 

v.  Perkins,  154,  442. 

v.  Railroad    Co.,   379. 
Oscanyan  v.  Arms  Co.,  368. 
Overman  Wheel  Co.  v.  Manufac- 
turing Co.,  329,  332. 
Owen  v.  Brown,  133. 
Owens,  In  re,   78. 
Ozark  Land  Co.  v.  Leonard,  406. 


Pacific  Live  Stock  Co.  v.  Hanley, 

398. 
Pacific  Northwest  Packing  Co.  v. 

Allen,  522. 
Pacific  R.  Co.  v.  Railroad  Co.,  273. 
Pacific    R.    Co.    of    Missouri    v. 

Ketchum,  225. 
Pacific    Steam    Whaling    Co.    v. 

U.  S.,  193,  467. 
Page  v.  Edmunds,  130. 
Paige,  In  re,  114. 
Palliser  v.  U.  S.,  32. 
Panama  R.   Co.  v.  Shipping  Co., 

473. 
Paquet,  In  re,  449. 
Paquete  Habana,  The,  429,   459, 

483. 
Parish,  In  re,  149. 
Parker  v.  Ormsby,  245. 
Parkinson  v.  Barr,  301. 
Parsons  v.  Railway  Co.,  170. 
Patterson,   In   re,   154. 
Patterson  v.  Railroad  Co.,  296. 
Pawlet  v.  Clark,  226. 
Payne  v.  Niles,  505. 
Pearce  v.  Rice,  401. 
Peaslee  v.  Haberstro,  357. 
Peck,  In  re,  149. 
Peck  v.  Elliott,  266. 
Peden  v.  Bridge  Co.,  373. 
Peninsular  Iron  Co.  v.  Stone,  220. 
Penn  Mut.  Life  Ins.  Co.  v.  Aus- 
tin, 462,  466. 
Pennoyer  v.  Neff,  239. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


599 


Pennsylvania  Co.,  Ex  parte,  S10, 

312,  313,  346. 
Pennsylvania  Co.  v.  Bender,  313. 
Pennsylvania  R.  Co.  v.  Railroad 

Co.,  217. 
People  of  New  York  v.  Bennett, 

316. 
People's  Bank   v.  Insurance  Co., 

332. 
People's  Sav.  Inst.  v.  Miles,  266. 
Peper  v.  Fordyce,  296. 
Perego  v.  Dodge,  397. 
Perry  v.  Insurance  Co.,  360. 
Person  v.  Railroad  Co.,  297. 
Peters  v.  U.  S.,  38,  42. 
Petrie  v.  Bank,  216. 
Pettibone  v.  U.  S.,  22. 
Pettit  v.  Walshe,  438,  466. 
Pewabic  Min.  Co.  v.  Mason,  416. 
Phelps  v.  Association,  268. 

v.  Oaks,  247. 
Phenix  Ins.  Co.,  Ex  parte,  381. 
Phillips  v.  Gilbert,  379. 
Phipps  v.  Harding,  16. 
Phoenix  Ins.  Co.  v.  Wulf,  392. 
Pickens   v.    Roy,    110. 
Pickham    y.    Manufacturing   Co., 

198. 
Pierce  v.  Corrigan,  344. 
v.  Feagans,  400. 
v.  U.  S.,  42,  50. 
Pikes   Peak   Power  Co.   v.   Colo- 
rado Springs,  467. 
Pilot,  The,  466. 
Pirie  v.  Trust  Co.,  117,  118. 

v.  Tvedt,  304. 
Pittelkow,  In  re,   143. 
Pittsburg,  C,  C.  &  St.  L.  Ry.  Co. 

v.  Bridge  Co.,  423. 
Plant   Inv.    Co.   v.   Railroad   Co., 

242. 
Piatt  v.  Beach,  65. 

v.  Real  Estate  Co.,  230. 
Plessy   v.   Ferguson,   70. 
Pointer  v.  U.  S.,  42,  58,  362. 
Polleys  v.  Improvement  Co.,  484. 
Poo  ley  v.  Luco,  227,  299. 


Pope  v.  Railroad  Co.,  446. 
Poppenhauser  v.  Comb  Co.,  211. 
Post  v.  Bulkley,  224. 
Postal    Telegraph    Cable    Co.    v. 

Alabama,  212. 
Postmaster  General  v.  Early,  65. 
Potter  v.  Bank,  11. 
Pounds  v.  U.  S.,  57. 
Powers  v.  Railway  Co.,  324,  886, 

340,  346. 
Pratt,  In  re,   84. 
Pratt  v.  Coke  Co.,  208. 
Presto,  The,  448. 
Preston  v.  Smith,  398. 
Price  v.  McCarty,  31. 

v.  U.  S.,  52. 
Providence  &  N.  Y.  S.  S.  Co.  r. 

Manufacturing   Co.,   390. 
Provident  Sav.   Life  Assur.   Soc. 

v.  Ford,  206. 
Pullman's     Palace    Car    Co.    v. 

Washburn,  272. 
Purdy  v.  Wallace,  Muller  &  Co., 

278. 
Putnam  v.  Ingraham,  302. 

Q 

Quimby  Freight  Forwarding  Co., 
In  re,  87. 


Rainey  v.  Herbert,  200,  201. 

Ralston,  Ex  parte,  508. 

Rand  v.  Walker,  307. 

Reagan  v.  U.  S.,  52. 

Reed  v.  Hardeman  Co.,  323. 

Reedy  v.  Electric  Co.,  394. 

Reese  v.  Zinn,  221. 

Reichman,   In  re,  100. 

Removal  Cases,  297,  323,  332. 

Republic  of   Colombia   v.  Cauca 

Co.,  226. 
Resler,  In  re,   123 
Resolute,  The,  431. 
Reynolds  v.  U.  S.,  49. 
Rhino  v.  Emery,  400. 
Rhoades  v.  Selin,  409. 


GOO 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Rhode   Island   v.   Massachusetts, 

349. 
Rice  v.  Ames,  26,  42,  438,  466. 
Richardson  v.  Golden,  409. 
Riddle's  Sons,  In  re,  132. 
Riggin  v.  Magwire,  121. 
Rike  v.  Floyd.  313. 
Riley  v.  Warden,  85. 
Riser  v.  Railroad  Co.,  302,  304. 
Roach  v.  Hulings,  385. 
Robb  v.  Connelly,  180. 
Roberts  v.  Lewis,  361. 

v.  Navigation    Co.,    299,    324, 
328. 
Robertson  v.  Perkins,  368. 
Robinson  v.  Anderson,  249. 
v.  Caldwell,  434,  454. 
v.  Railroad  Co.,  412. 
Robison  v.  Hardy,  313. 
Roche,  In  re,  442. 
Roeber,  In  re,  129. 
Rogers'  Milling  Co.,  In  re,  139. 
Rollins  Gold  &   Silver  Min.   Co., 

In  re,  104. 
Roinanow,  In  re,  94,  102. 
Rome  Planing  Mill  Co.,  In  re,  98, 

100,  114. 
Rondot  v.  Rogers  Tp..  228. 
Root  v.  Woolworth,  267,  421. 
Rosen  v.  U.  S.,  39. 
Rosenbaum  v.  Bauer,  193,  271. 
Rosencrans  v.  U.  S.,  39. 
Rosenthal   v.  Coates,  311. 
Rothschild  v.  Knight,  492. 
Rouse  v.  Hornsby,  475. 
Rowan  v.  Ide,  522. 
Royal  Ins.  Co.  v.  Martin,  479. 
Royall,  Ex  parte,  180. 
Rumsey  &  Sikemier  Co.  v.  Man- 
ufacturing Co.,  102. 
Rusch,  In  re,  440. 
Rutland   R.  Co.  v.  Railroad  Co., 

4S5,  493. 
Ryan  v.  Bindley.  10. 
v.  Thomas,   485. 
Ryder  v.  Bateman,  386. 


Sage  v.  Railroad  Co.,  509. 

St.  Anthony  Falls  Water  Power 

Co.  v.  Commissioners,  15. 
St.  Clair  v.  U.  S.,  51,  56,  499. 
St.  Lawrence,  The,  381. 
St.  Louis   I.   M.   &   S.   R.   Co.  v. 

Vickers,  366. 
St  Louis  &  S.  F.  R.  Co.  v.  James, 
215,  217. 
v.  McBride,    229. 
v.  Wilson,  296. 
St.  Paul,  M.  &  M.  R.  Co.  v.  Rail- 
way Co.,  204. 
St.  Paul  &  C.  R.  Co.  v.  McLean, 

344. 
St.  Paul  &  N.  P.  Ry.  Co.  v.  Rail- 
road Co.,  209. 
St.  Tammany  Waterworks  Co.  v. 

Waterworks  Co.,  206. 
Sanborn.  In  re,  143. 
San  Gabriel   Sanatorium  Co.,  In 

re,  87. 
San  Jose   Land  &  Water  Co.  v. 

Ranch  Co.,  492. 
Sansom  v.  Railway  Co.,  367. 
Sapiro,  In  re,  125. 
Sapphire,  The  v.  Napolean,  226. 
Savin.    Ex   parte,    176. 
Savings  &  Loan  Soc.  v.  Davidson, 

405. 
Say  ward  v.  Denny,  490. 
Scanlan,  In  re,  85. 
Schillinger  v.  U.  S.,  163. 
Schmechel  Cloak  &   Suit  Co.,  In 

re,  119. 
School  District  of  Ackley  v.  Hall, 

503. 
Schoolfield  v.  Rhodes,  354. 
Schroeder  v.  Young,  377,  420. 
Schrom,  In  re,  112. 
Schultz,  In  re,  156. 
Schunk  v.  Stoddard  Co.,  196,  199. 
Schwab  v.  Berggren,  52,  58. 
Schwenck   v.    Strang,    339. 
Schwenk  v.  Strang,  312. 


CASES   CITED. 


601 


[The  figures  refer  to  pages.] 


Scott,  In  re,  126. 

Scott  v.  Armstrong,  9,  354. 
v.  Donald,  198. 
Y.  McXeal,   14. 
v.  Neely,  195,  289,  294,  354. 

Scully,  In  re,  128. 

Seaman   v.    Insurance   Co.,    413, 
418. 

Searl  v.  School  Dist,  285. 

Searles  v.  Railroad  Co.,  389. 

Seattle,  L.  S.  &  E.  R.  Co.  v.  Trust 
Co.,  392. 

Security  Co.  v.  Pratt,  324, 

Seebold,  In  re,  440. 

Selvester  v.  U.  S.,  56. 

Semmel,   In  re,  154. 

Seybert  v.  Railroad  Co.,  234,  237, 
238. 

Skaeffer,  In  re,  143. 

Shainwald  v.  Lewis,  262. 

Sharon  v.  Hill,  24. 
v.  Terry,  390. 

Shattuck   v.    Insurance   Co.,   291, 
329. 

Shaw,  In  re,  145. 

Shaw  v.  Mining  Co.,  231. 

Shea,  In  re,  142. 

Shearson  v.  Littleton,  221. 

Sheffield   Furnace   Co.    v.   Withe- 
row,   397. 

Sheffield  &  B.  Coal,  Iron  &  R.  Co. 
v.  Gordon,  415,  416. 

Sheldon  v.  Railroad  Co.,  290. 

Shelp  v.  U.  S.,  40,  46. 

Shepard  v.  Adams,  356,  459. 

Shertzer,  In  re,  156. 

Shields  v.  Barrow,  222. 
v.  Coleman,  455. 

Shoecraft  v.  Bloxham,  240. 

Shoemaker  v.  U.  S.,  173. 

Shute  v.  Keyser,  478. 

Sievers,  In  re,  110. 

Sigafus  v.  Porter,  368,  472. 

Silver  v.  Ladd,  507. 

Silverman,  In  re,  122. 

Simmons  v.  U.  S.,  54,  367. 

Simms  v.  Simms,  479. 


Simonson  v.  Sinsheimer,  102. 
Simpson  v.  Stockyards  Co..  250. 
Sinclair  v.  District  of  Columbia, 

479. 
Sinsheimer  v.  Simonson,  113. 
Sioruka,  In  re,  145. 
Skinner,  In  re,  155. 
Slaughter  v.  Glenn,  15. 
Sloan  v.  Lewis,  94. 

v.  U.  S.,  466. 
Slomka,  In  re,  132,  145. 
Smale  v.  Mitchell,  373. 
Smith,  In  re,  46,  88. 
Smith  v.  Ironworks,  523. 

v.  Alabama,  7. 

v.  Fifield,  245. 

v.  Lumber  Co.,  313. 

v.  Lyon,  232. 

v.  McKay,  432,  455. 

v.  Mississippi,  45. 

v.  Packard,  244. 

v.  Railroad  Co.,  218. 

V.  U.  S.,  54. 
Smith   Middlings   Purifier   Co.   t. 

McGroarty,  280. 
Sonnentheil  v.  Brewing  Co.,  476. 
Soudan  Mfg.  Co.,  In  re,  133. 
South  Dakota  v.  North  Carolina, 

350. 
Southern    Loan    &   Trust    Co.    v. 

Benhow,  143. 
Southern  Pac.  Co.  v.  Denton,  228, 
230,  279,  359. 

v.  Pool,  367. 
Southern  Pac.   R.  Co.  v.  Denton, 
396. 

v.  Temple,   395. 
Southern   R.   Co.  v.   Allison,  217, 
279,  488. 

v.  Carson,  304. 
South  Penn  Oil  Co.  v.  Latshaw, 

371. 
Sparf  v.  U.  S.,  54,  57. 
Speidell  v.  Henrici,  397. 
Spencer  v.  Silk  Co.,  446. 

v.  Stockyards  Co.,  237. 
Spies  v.  Illinois,  518. 


602 


CASES   CITED. 


IThe  figures  refer  to  pages.] 


Spofford,  In  re,  412. 

Spreckels   Sugar   Refining  Co.   v. 

McClain,  434,  435,  447,  465. 
Stalker  v.  Car  Co.,  300. 
Stanbrough  v.  Cook,  307. 
Stanley  v.  Schwalby,  484. 
Stanly  Co.  v.  Coler,  13. 
Stanton  v.  Railroad  Co.,  416. 
Starr  v.  U.  S.,  27,  51,  54. 
State  v.  Eno,  181. 
State  Ins.  Co.,  Ex  parte,  341. 
State  of  Georgia  v.  Stanton,  349. 
State    of    Maryland    v.    Baldwin, 

212. 
Steam  Vehicle  Co.  of  America,  In 

re,  132. 
Steele  v.  U.  S.,  164. 
Stern,  In  re,  122. 
Stevens  v.  Fuller,  176. 

v.  Railroad  Co.,  411. 
Stevenson,  In  re,  104. 
Stevenson  v.  U.  S.,  57. 
Stewart  v.  Dunham,  267. 

v.  Masterson,  507. 
Stokes  v.  Farnsworth,  406. 
Stone  v.  South  Carolina,  212,  304, 
340. 

v.  U.  S.,  1G8. 
Storti  v.  Massachusetts,  178,  186. 
Strang  v.  Railroad  Co.,  404. 
Strauder  v.  West  Virginia,  315. 
Strawbridge  v.  Curtiss,  220. 
Streeter  v.  Bank,  118. 
Stroheim  v.  Deimel,  377. 
Strong  v.  U.  S.,  166. 
Stuart  v.  Easton,  227. 

v.  Gay,  420. 

v.  St.  Paul,  395. 
Stutsman,  In  re,  192,  193. 
Sully  v.  Drennan,  296. 
Sulzer  v.  Watson,  364. 
Surety  Guaranty  &  Trust  Co.,  In 

re,  87. 
Suydam  v.  Williamson,  15. 
Swafford  v.  Templeton,  208. 
Swan,  In  re,  183, 


Swift,  In  re,  119. 
Swift  v.  Tyson,  16. 


Taintor  v.  Bank,  415. 
Talbot  v.  Bank,  488. 
Taylor,  In  re,  92,  114. 
Teller  v.  U.  S.,  386. 
Tennessee  v.  Bank,  204,  286. 

v.  Davis,  203,  276,  317,  318. 

v.  Quintard,  420. 
Terlinden  v.  Ames,  176. 
Terrell  v.  Allison,  421. 
Terry,  Ex  parte,  176,  185. 
Terry,  In  re,  185. 
Terry  v.  Sharon,  390. 
Texas  v.  Cattle  Co.,  290. 

v.  Gaines,  316. 

v.  White,  349. 
Texas  &  P.  R.  Co.  v.  Cody,  287. 

v.  Cox,  205,  288. 

v.  Nelson,  362. 
Texas  &  St.  L.  R.  Co.  v.  Rust,  341. 
Thayer  v.  Spratt,  486. 
Thiede  v.  Utah,  56. 
Third  Street  &  Suburban  R.  Co. 

v.  Lewis,  204. 
Thorn  v.  Pittard,  371. 
Thomas,  In  re,  24. 
Thomas  v.  Loney,  24. 
Thompson,  In  re,  86,  135. 
Thompson  v.  Poole,  65. 

v.  Searcey  Co.,  13. 

v.  U.  S.,  46,  48. 
Thomson  v.  Elton,  241. 

v.  Wooster,  382,  394. 
Thurber  v.  Miller,  307. 
Tiffany  v.  Lucas,  97. 
Tilden,  In  re,  144. 
Tinker,  In  re,  153,  157. 
Tinker  v.  Colwell,  153,  158. 
Todd  v.  U.  S.,  28. 
Toledo,  A.  A.  &  N.  M.  R.  Co.  T. 

Pennsylvania  Co.,  171. 
Topliff  v.  Topliff,  416. 
Tornanses  v.  Melsing,  523. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


603 


Torrence  v.  Shedd,  303. 

Torrent  v.  Lumber  Co.,  341. 

Tortat  v.  Manufacturing  Co.,  335. 

Town  of  Elgin  v.  Marshall,  196. 

Town  of  Martinton  v.  Fairbanks, 
500. 

Tracy  v.  Morel,  299,  335. 

Travelers'  Protective  Ass'n  v.  Gil- 
bert, 374. 

Travis  Co.  v.  Manufacturing  Co., 
449. 

Treat  Mfg.  Co.  v.  Iron  Co.,  464. 

Treniper  v.  Scbwabacher,  291. 

Trimble  v.  Woodbead,  136. 

Tripp  v.  Railway  Co.,  505. 

Tua  v.  Carriere,  80. 

Tubman  v.  Railroad  Co.,  374. 

Turner  v.  Richardson,  491. 

Tyler,  Ex  parte,  269. 

Tyler  v.  Judges.  485. 
v.  Savage,  384. 

u 

Union  Nat.  Bank  v.  Miller,  71. 
Union  Pac.  R.  Co.,  In  re,  97. 

v.  Callaghan,  3G8. 

v.  Harris,  205,  476. 

v.  Yates,  10. 
Union  Telegraph  Co.  v.  Publish- 
ing Co.,  7. 
Union  Terminal   R.   Co.   v.  Rail- 
road Co.,  297,  301. 
Union  Trust  Co.,  In  re,  129,  143. 
Union  &  Planters'  Bank  v.  Mem- 
phis, 434. 
U.  S.  v.  Allen,  480. 

v.  Allred,  27. 

v.  Ames,  183. 

v.  Arwo,  33. 

v.  Association,  263. 

v.  Barnaby,  25. 

v.  Barnhart,  58. 

v.  Bennett,  36. 

v.  Berry,  41. 

v.  Bevans,  23. 

v.  Boom  Co.,  207. 

v.  Borger,  46. 


U.  S.  v.  Brazeau,  38. 
v.  Bromley,  319. 
v.  Burchard,  164. 
v.  Burr,  26. 
v.  Collins,  26. 
v.  Conrad,  39. 
v.  Cook,  38. 
v.  Cornell,  44. 
v.  Coudert,  443. 
v.  Cruikshank,  37. 
v.  Curtis,  44. 
v.  Davis,  166,  167. 
v.  Dawson,  33. 
v.  Dunbar,  26. 
v.  Eaton,  22. 
v.  E.  C.  Knight  Co.,  268. 
v.  Railway  Co.,  173. 
v.  Farrington,  29. 
v.  Fero,  38,  41. 
v.  Fowkes,  437. 
v.  Fox,  78. 
v.  Gale,  45. 
v.  Greathouse,  164. 
v.  Greene,  28,  31. 
v.  Hammond,  442. 
v.  Harden,  29. 
v.  Harmon,  260. 
v.  Harsha,  166,  168,  443,  472. 
v.  Haynes,  36. 
v.  Hewecker,  448. 
v.  Hill,  447. 
v.  Hopewell,  444,  447. 
v.  Horner,  32. 
v.  Hudson,  5,  6. 
v.  Hughes,  29. 
v.  Irrigation  Co.,  264. 
v.  Jahn,  433,  434,  444,  447. 
v.  Jones,  162,  174. 
v.  Judges,  449. 
v.  Karlin.  31. 
v.  Kelly,  168. 
v.  Kilpatrick,  26,  46. 
v.  Land  Co.,  396,  401. 
v.  Laws,  35. 
v.  Lee,  31. 
v.  Lynah,  163. 
v.  McKee,  36. 


G04 


0.  S.  v 

v. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

T. 

V. 

V. 

V. 

V. 

V. 

V. 

T. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 


CASES    CITED. 
[The  figures  refer  to  pages.} 


Mackoy,  66. 
Mann,  62. 

.Manufacturing  Co.,  163. 
Martin,  28. 
Mills,  38. 
Mooney,  61,  254. 
Moore,  40. 
Morgan,  260. 
Morris,  36. 
Murphy,  36. 
Nelson,  40. 
Noelke,  39.     . 
Norton,  319,  447. 
Osborn,  169. 
O'Sullivan,    36. 
Pacific  Co.,  237. 
Palmer,   163. 
Paul,  25. 
Pena,  503. 
Penn,  24. 
Peters,  42. 
Peterson,  23. 
Phillips,  505. 
Price,  31. 
Railway  Co.,  173. 
Ranch  Co.,  169. 
Rider,  448. 
Rindskopf,  66. 
Rodgers,  23. 
Sanges,  463. 
Sauer,  26,  29. 
Sayward,  65,  202,  292. 
Scott,  41. 
Severens,  449. 
Shapleigh,  66. 
Sheridan,  231. 
Smith,  29,  43. 
Spintz,  42. 

Telephone  Co.,  443,  447. 
Texas,  350. 
Three  Friends,  63. 
Tiernay,  36. 
Tureaud,  43. 
Upham,  39. 
Van  Duzee,  44. 
Watson,  39. 
Weber,  389. 


U.  S.  v.  Williams.  422. 

v.  Zucker,  50,  63. 
United  States  Mut.  Ace.  Ass'n  r. 

Barry,  372. 
Upshur  v.  Briscoe,  159. 
Upshur  Co.  v.  Rich,  192,  193. 


Vance  v.  Campbell,  9. 

v.  Vandercook  Co.,  197. 
Van  Doren  v.  Railroad  Co.,  362. 
Van  Duzee  v.  U.  S.,  44. 
Vane   v.   Newcombe,   85. 
Van  Wagenen  v.  So  wall,  454. 
Vattier  v.   Hinde,   378. 
Venable  v.   Richards,   318. 
Vicksburg     Waterworks     Co.     v. 

Vicksburg,  206. 
Vicksburg  &  M.  R.  Co.  v.  Putnam, 

367. 
Village  of  Norwood  v.  Baker,  205. 
Viola,   The,   165. 
Virginia,   Ex  parte,  69. 
Virginia  v.  Bingham,  318. 
v.  De  Hart,  318. 
v.  Paul,  318,  319. 
v.  Rives,   315. 
Virginia-Carolina     Chemical     Co. 

v.  Insurance  Co.,  272,  294. 
Von  Schroder  v.  Brittan,  406. 

w 

Wabash  R.  Co.  v.  Flannigan,  486. 

v.  Pearce,  488. 
Wabash,   St.  L.   &   P.   R.   Co.   v. 

Trust  Co.,  308. 
Wabash  WT.  Ry.  Co.  v.  Brow,  345. 
Wade  v.  Travis  Co.,  14. 

v.  Wortsman,  212. 
Wagner  v.  Drake,  390. 
Wahl  v.  Franz,  192. 
Waite,  In  re,  24. 
Waite  v.  San  Cruz,  245. 

v.  Santa   Cruz,    197,  248. 
Walden  v.  Skinner.  223. 
Waldron  v.  Waldron,  370. 
Wales  v.  Whitney,  175,  176. 


CASES  CITED. 


605 


[The  figures  refer  to  pages.] 


Walker,  In  re,  125. 
Walker  v.  Collins,  287. 

v.  Powers,    240. 
Wall  v.  Cox,  136. 
Walter  v.  Railway  Co.,  201. 
Walworth   v.   Cook,   387. 
Ward,  Ex  parte,  178. 
Ward  v.  Construction  Co.,  319. 
Warner  v.  Fowler,   319. 

v.  New   Orleans,  471. 

v.  Searle  &  Hereth  Co.,  476. 

v.  Spooner,  116. 
Washburn  v.  Car  Co.,  272. 
Washburn    &   Moen    Mfg.    Co.  T. 

Insurance  Co.,  16. 
Washington  A.   &   G.    R.   Co.   v. 

Bradley,  407. 
Waterloo  Organ  Co.,  In  re,  143. 
Watkins  v.  King,  435. 
Watson  v.  Bonfils,  210. 
Watts  &  Sachs,  In  re,  390. 
Waxelbaum,  In  re,  83,  91. 
Wayman  v.  Southard,  381. 
Webb  v.  York,  437. 
Wedding  v.  Meyler,  484. 
Weitzel,  In  re,  84. 
Welling,  In  re,  141. 
Werham  v.  Switzer,  411. 
Werner  v.  Murphy,  200. 
Wesson,  In  re,  151. 
West  v.  Barnes,  500. 

v.  Cabell,  27. 

v.  Cedar  Co.,  374. 

v.  Louisiana,   206. 

v.  Smith,  361. 
West  Co.  v.  Lea,  96,  97,  101. 
Western  Assur.  Co.  v.  Polk,  371. 
Western  Dredging  &  Imp.  Co.  v. 

Haldmaier,  369. 
Western  Electric  Co.  v.  Telegraph 

Co.,  411. 
Western  Union  Cold  Storage  Co. 

v.  Hurd,  158. 
Western  Union  Telegraph  Co.  v. 
Brown,  304. 

v.  Publishing  Co.,  7. 

v.  Railroad  Co.,  204. 


Westervelt    v.     Library    Bureau, 

402. 
Westheider  v.   Railroad  Co.,  219. 
Weston  v.  Charleston,  193. 
West  Virginia  v.  King,  278. 
Wetmore  v.  Rymer,  459. 
Wheaton  v.  Peters,  6. 
Wheeler  v.  Railroad  Co.,  205. 

v.  Walton  &  Whann  Co.,  393. 
Wheless  v.  St.  Louis,  196,  201. 
Whitaker  v.  Pope,  360. 
Whitcomb  v.  Smithson,  337., 
White  v.  Ewing,  266,  268. 

v.  Railroad  Co.,  412. 

v.  Rankin,  204,  208. 

v.  Schloerb,  110,  391. 

v.  U.  S.,  54,  58. 

v.  Van  Horn,  367. 
Whitehead  v.  Shattuck,  195. 
1\Yliitelaw,  In  re,  390. 
Whitener,  In  re,  442. 
White   Star  Laundry  Co.,  In  re, 

87. 
Whitford  v.  Clark,  11. 
Wliitten  v.  Tomlinson,  184. 
Wiborg  v.  U.  S.,  51. 
Wiener  &  Goodman  Shoe  Co.,  In 

re,  120. 
Wiley  v.  Sinkler,  198,  464. 
Wilkes   County    v.    Coler,    13,   14. 
Wilkins  v.  U.  S.,  40. 
Wilkinson  v.  Dobbie,  111. 
AYilliams,  In  re,  82,  441. 
Williams  v.   Bankhead,  223,  224. 

v.  Bruffy,  4S2,  517. 

v.  Heard,  130. 

v.  Louisiana,  487. 

v.  Mississippi,   70. 

v.  Nottawa  Tp.,  247. 

v.  U.  S.,  40,  53. 
Wilson,  Ex  parte,  35,  43. 
Wilson,  In  re,  134. 
Wilson  v.   Nelson,  99,  100. 

v.  North  Carolina,  13. 

v.  Oswego  Tp..  306. 

v.  Trust   Co.,   364,   500. 

v.  U.    S.,    51,    53. 


606 


CASES    CITED. 


[The  figures  refer  to  pages.] 


Winans  v.  Attorney  General,  227. 
Winston  v.  U.  S.,  59. 
Wisconsin  v.   Insurance  Co.,  348. 
Wolfe  v.  Insurance  Co.,  211. 
Wolff  v.  Archibald,  322. 
Wolf  &  Levy,  In  re,  132. 
Wollock,  In  re,  157. 
Wong  Him  v.  Callahan,  394. 
Wood,  In  re,  31,  181. 
Woodbury  v.   Railroad  Co.,  421. 
Woods,  In  re,  473. 
Wooster  v.  Blake,  399. 
Worcester   v.    Georgia,    502. 
Worcester  Co.,  In  re,  440,  442. 


World's  Columbian  Exp.  v.  TJ.  S., 

445. 
Wright,  In  re,  123. 
Wright  v.  Bales,  10. 
Wyllie,  In  re,  90. 


Yazoo  &  M.  R.  Co.  v.  Adams,  491. 
Young  v.  Upson,  133. 
Youtsey  v.  Hoffman,  300. 
Yulee  v.  Vose,  338. 


Zebert  v.  Hunt,  330. 
Zimmerman  T.  So  Relle,  401. 


INDEX. 


[THE  figures  refer  to  pages.] 


A 

ABATEMENT, 

plea  to  indictment,  45. 

ABSENT  PARTIES, 

jurisdiction  where  parties  not  within  district,  221,  235. 
service  of  process,  238. 

ACTION  AT  LAW, 

see  "Common-Law  Procedure." 

ADEQUATE  REMEDY  AT  LAW, 

effect  on  jurisdiction  of  equity,  378. 

ADMIRALTY, 

jurisdiction  of  district  court,  G7. 

review  in  circuit  court  of  appeals,  448,  524. 

ALIEN  CONTRACT  LABOR  LAW, 

jurisdiction  of  penalty  suits  under,  61. 

ALIENS, 

allegation  of,  in  pleadings,  226. 

controversies  between,  no  federal  jurisdiction,  227,  299. 

controversies  with  citizens,  jurisdiction  of,  226,  299. 

suits  by,  district  court  jurisdiction,  71. 

suits  against,  locality,  230. 

see  "Circuit  Court" ;  "District  Court" ;  "Removal  of  Causes." 
AMENDMENT, 

bills  in  equity,  399. 

indictments,  40. 

petitions  in  bankruptcy,  91. 

for  removal  from  state  court,  324. 
pleadings  at  law,  361. 
process,  357. 

AMOUNT  IN  CONTROVERSY, 

see  "Circuit  Court"  ;    "Injunction." 
Hughes  Fed.Jur.  (607) 


608  INDEX. 

[The  figures  refer  to  pages.] 

ANCILLARY  JURISDICTION, 

compelling  obedience  to  orders,  421. 

cross-bills,  274. 

enjoining  judgments  or  other  proceedings,  272. 

incidental  to  main  suit,  267. 

independent  of  parties  or  amount,  266. 

in  general,  266-270. 

mandamus,  271. 

property  in  several  districts,  270. 

restitution  after  reversal  of  money  collected  on  decree,  42L 

scire  facias,  272. 

ANOTHER  ACTION  PENDING, 

if  in  state  court,  no  defense  in  federal  court,  400. 

ANSWER, 

in  equity,  403. 

to  interrogatories,  406. 

APPEAL  AND  ERROR, 

appeal,  allowance  of,  509. 

supersedeas  on,  510. 

takes  up  law  and  fact  in  other  than  common-law  cases,  503. 
assignment  of  errors,  502. 
certificate  as  method  of,  from  circuit  court  of  appeals,  512. 

form  and  requisites  of,  469. 
certiorari  as  method  of,  from  circuit  court  of  appeals,  513. 
circuit  court  of  appeals,  review  by,  521. 

of  certain  interlocutory  orders,  521. 

process  of,  523. 
citation,  issue  and  service  of,  504. 

necessary  on  writ  of  error,  505. 

not  necessary  on  appeal  in  open  court,  509. 
courts  of,  424. 
supreme  court,  review  by,'  495. 

final  orders  only,  496. 
time  limitations  on,  from  district  or  circuit  court,  495,  521. 

from  circuit  court  of  appeals,  510. 

from  state  courts,  516. 
trial,  in  appellate  court,  524. 

briefs,  525. 

further  proof,  524. 


INDEX.  609 

[The  figures  refer  to  pages.] 

APPEAL  AND  ERROR— Cont'd. 

writ  of  error,  form  and  issue  of,  500,  517. 
parties  to,  505. 
return  of,  502,  517. 
supersedeas  and  bond,  506,  517. 
takes  up  law  questions  in  law  cases,  497,  514. 
to  state  courts,  517. 

APPEARANCE, 

filing  petition  to  remove  not  a  general,  345. 

state  laws  as  to,  in  federal  courts,  359. 

waives  privilege  of  being  sued  only  in  district  of  residence,  229. 

APPRAISERS, 

circuit  court's  review  of  decisions  by,  266. 

circuit  court  of  appeals,  review  of  circuit  court's  decision,  266, 
444. 

ARGUMENT, 

on  appeal  or  error,  525. 
setting  down  plea  for,  400. 

ARREST, 

in  criminal  cases,  26. 

of  judgment,  58,  373. 

see  "Ne  Exeat." 

ASSIGNMENT, 

as  affecting  rigbt  to  bring  suit  in  circuit  court,  239. 
as  affecting  rigbt  to  remove  suit  from  state  court,  295. 
colorable,  to  confer  jurisdiction,  247. 

ASSIGNMENT  OF  ERRORS, 

on  appeal  or  writ  of  eror,  502. 

ATTACHMENT, 

not  sustainable  unless  defendant  personally  served  witb  process, 

237,  358. 
state  laws  of,  in  federal  courts,  358. 


B 

BANKRUPTCY, 

acts  of,  admission  of  insolvency,  103. 
by  corporations,  103. 
assignments  or  receiverships,  101. 
Hugiies  Fed.  Jue. — 39 


610  INDEX. 

[The  figures  refer  to  pages.] 

BANKR  U  PTC  Y— Cont'd. 

fraudulent  transfers,  96. 
illegal  preferences,  97,  98. 
adjudication,  91,  113,  134. 

circuit  court,  controversies  within  jurisdiction  of,  265. 
circuit  court  of  appeals,  review  by,  438. 
courts  of,  81. 

creditors,  debts  provable,  nature,  119. 
alimony,  120. 
annuities,  120. 
contracts,  121. 
fines,  120. 
meeting  of,  116. 
proof  of  claims,  116. 
torts,  122. 
discbarge,  application  for,  147. 
burden  of  proof,  150. 
collateral  weight  of,  151. 
debts  unaffected  by,  157. 
grounds  for  opposing,  151-156. 
opposition  to,  148. 
revocation  of,  159. 
examination  of  bankrupt,  124. 
exemption,  how  set  apart,  145. 

insolvency,  when  material  element  of  act  of  bankruptcy,  97,  101- 
103. 
meaning  of,  139. 
Insurance,  when  passes  to  trustee,  141. 
legislation  on,  constitutionality  of,  77. 
effect  on  state  insolvent  laws,  79. 
history  of,  73. 
policy  of,  74. 
petition,  defendants  to,  94. 

defense,  how  and  by  whom  made,  112. 

dismissal  of,  94. 

limitation  on  filing,  104. 

process  on.  100. 

requisites  of,  involuntary,  92. 

voluntary,  88. 
warrant  of  seizure  on,  108. 
preference  as  act  of,  97. 

when  voidable,  131,  138. 


INDEX.  611 

[The  figures  refer  to  pages.J 

BANKRUPTCY— Cont'd. 

proceedings-  in,  locality  of,  81. 

corporations  subject  to,  86. 

parties  to,  voluntary,  83. 
involuntary,  84,  93. 

wage  earners,  85. 
receiver,  when  appointed,  111. 

powers  of,  111. 
trial,  burden  of  proof,  114. 

when  by  jury,  114. 
trustee,  collection  of  assets,  134. 

distribution  of  estate,  priorities,  143,  144. 

election,  127. 

interest  in  rights  of  action,  141. 

power  of  sale,  142. 

power  to  attack  preference,  131. 

property  passing  to,  130,  141. 

recording  adjudication,  134. 

title,  128. 
BILL, 

in  equity,  383. 

BILLS  OF  EXCEPTION, 
in  civil  cases,  3G9. 
in  criminal  cases,  54. 

BILLS  OF  REVIEW, 

decrees  in  equity,  423. 

BRIEFS, 

on  appeal  or  error,  525. 

c 

CERTIFICATE, 

as  method  of  appeal  from  circuit  court  of  appeals  to  supreme 
court,  512. 
form  and  requisites,  469. 

CERTIORARI, 

as  method  of  appeal  from  circuit  court  of  appeals  to  supreme 
court,  513. 

CHANCERY, 

see  "Equity." 


Q12  INDEX. 

[The  figures  refer  to  pages.] 

CHARGE, 

to  jury,  in  civil  cases,  3G3. 
in  criminal  cases,  53. 

CIRCUIT  COURT, 

ancillary  jurisdiction  of,  266. 
appraiser's  decisions,  review  of,  266. 
assignment  as  affecting  right  to  sue  in,  239. 

assignee,  meaning  of,  243. 

choses  in  action,  242. 

corporate  securities,  241. 

riglit  to  remove,  bow  affected  by,  295. 
bankruptcy,  questions  in  cognizable  by,  265. 
citizens  and  aliens,  jurisdiction  over  controversies  between,  226. 

controversies  between  aliens,  no  jurisdiction,  227. 

pleading  must  show  alienage,  227. 
citizenship  as  affecting  jurisdiction,  209. 

actual  litigant,  not  beneficiary,  governs,  212. 

District  of  Columbia,  inhabitant  of,  not  citizen  of  a  state, 
210. 

jurisdictional  meaning  of,  209. 

parties,  formal  or  necessary,  221. 

plurality  of  litigants,  220. 

territorial  inhabitant  not  citizen  of  state,  210. 
civil  original  jurisdiction  of,  elements,  189. 
civil  rights,  various  proceedings  for  acts  affecting,  256-259. 
colorable  attempts  to  confer  jurisdiction,  246. 

assignment  of  cause  of  action.  247. 

bald  assertion  of  federal  question,  249. 

change  of  citizenship,  247. 

excessive  claim,  197. 

improper  joinder  of  parties,  249. 
comptroller  of  currency,  certain  suits  against,  255. 
condemnation  of  insurrectionary  property,  254. 
condemnation  proceedings,  261. 
criminal  jurisdiction,  189. 
debentures,  suits  on,  254. 
district  of  suit,  228. 

absent  defendants,  claims  against  property  of,  237. 

defendant's  district  ordinarily,  228.  230. 

defendants  of  different  districts.  233. 

plaintiff's  district,  when,  228,  231. 


INDEX.  613 

[The  figures  refer  to  pages.] 

CIRCUIT  COURT— Cont'd. 

plurality  of  litigants  as  affecting,  232. 

requirement  as  to  district  waivable,  229. 

surety  company  suable  wberever  bond  given,  231. 
federal  question  as  conferring  jurisdiction,  202,  283. 

plaintiff's  pleading  must  show,  203. 
habeas  corpus  proceedings,  261. 
Import,  internal  revenue,  and  postal  suits,  252. 
interstate  commerce  act,  suits  concerning,  261. 
jurisdiction  once  vested  unaffected  by  subsequent  changes.  213. 
land  grants  of  different  states,  225. 
matter  in  dispute  as  affecting  jurisdiction,  196. 

ad  damnum  clause  as  showing.  197,  198. 

amount  directly  involved  in  pending  suit,  196. 

amount  recoverable  on  face  of  declaration,  197,  198. 

colorable  attempts  to  show,  197. 

counterclaim  as  affecting,  197. 

equity  suits  asking  special  relief,  200. 

interest  excluded,  199. 

joint  or  several  interests  as  affecting,  200,  201. 

must  be  capable  of  money  estimate,  199. 

not  affected  by  fact  that  claim  barred  by  limitations,  199. 

plurality  of  parties  as  affecting,  200. 
national  banks,  suits  by  or  against,  207,  255. 
navigation,  suits  for  obstructing,  264. 
ne  exeat,  right  to  issue,  261. 
organization  of,  187. 
patent  and  copyright  suits,  208,  254. 
penalties,  suits  for,  253. 

public  lands,  suits  for  unlawful  inclosures,  261. 
removal  of  causes,  jurisdiction  of,  275. 

from  district  court,  275. 

from  state  courts,  276. 
sessions,  189,  342. 
slave  trade  laws,  suits  under,  254. 
suits,  character  of  necessary  to  jurisdiction,  192,  2S5. 

at  law,  194,  285. 

in  equity,  194,  285. 
trust  acts,  suits  under,  262. 
United  States,  suits  against,  260. 

suits  by,  or  officers  of,  251. 


614  INDEX. 

[The  figures  refer  to  pages.] 

CIRCUIT  COURT— Cont'd. 

vessel  owners,  suits  for  negligence  causing  death,  259. 

see  "Citizenship"  ;   "Corporation"  ;   "Removal  of  Causes." 

CIRCUIT  COURT  OF  APPEALS, 

appraisers'  decisions,  appeals  from  circuit  court,  review  of,  444. 

auxiliary  writs,  issue  by,  449. 

bankruptcy  cases,  when  reviewable  by,  438. 

by  appeal  or  writ  of  error,  441. 

by  supervisory  review  in  matters  of  law,  439. 
criminal  jurisdiction,  436. 
finality  of  decisions,  445. 

admiralty  cases,  448. 

citizenship  cases,  445. 

criminal  cases,  448. 

patent  cases,  446. 

revenue  cases,  447. 
habeas  corpus  appeals,  437. 
interstate  commerce  commission  cases,  443. 
jurisdiction  in  general,  cases  excepted  from,  430. 

constitutional  questions,  when,  432-434. 

jurisdictional  questions,  when,  431. 

no  monetary  limit,  429. 

subjects  of,  429. 
organization  of,  426. 
review  of  by  supreme  court,  510. 

methods  of,  510-515. 
territorial  court  decisions,  review  of,  444. 
United  States,  claims  against,  443. 

suits  by,  443. 

see  "Appeal  and  Error"  ;  "Supreme  Court." 

CITATION, 

issue  and  service  of,  504. 

necessary  on  writ  of  error,  505. 

not  neeessary  on  appeal  in  open  court,  509. 

CITIZENSHIP, 

meaning  as  affecting  jurisdiction,  209. 
residence  not  its  equivalent,  211. 
state  not  a  citizen,  212. 

see  "Circuit  Court" ;   "Corporations" ;   "Removal  of  Cause*.' 


INDEX.  615 

[The  figures  refer  to  pages.] 


CIVIL  RIGHTS, 

violation  of,  removal  of  cause  for,  314,  331. 
suits  for,  69,  256-259. 

COMMON  LAW, 

no  common  law  of  United  States,  5,  22. 

COMMON-LAW  PROCEDURE, 

equitable  defenses  not  permitted  in,  354. 
equitable  titles,  suit  not  sustainable  on,  353. 
law  and  equity  distinction  preserved,  353. 
power  of  federal  courts  to  regulate  by  rule,  355. 
state  practice,  how  far  adopted,  355. 

appearances,  359. 

arrest  of  judgment,  373. 

attachments,  358. 

bills  of  exception,  369. 

evidence,  364. 

execution,  364. 

instructions  to  jury,  366. 

judgment  and  reopening  of,  373,  374. 

jury  and  waiver  of,  362. 

new  trial,  372. 

parties,  359. 

pleadings  and  amendments  of,  360. 

process  and  amendment  of,  356. 

verdict,  371. 

COMPLAINT, 

in  criminal  cases,  25. 

CONDEMNATION  PROCEEDINGS, 

circuit  court  jurisdiction  of,  2(51. 
district  court  jurisdiction  of,  171. 
federal  statutes  authorizing,  171. 
how  far  a  suit,  193,  285. 
procedure,  173. 
public  use,  173. 

CONTINUANCE, 

a  matter  of  discretion,  52,  362. 

CONTRACT  LABOR  LAW, 

jurisdiction  of  penalty  suits  under,  61. 

COPYRIGHTS, 

jurisdiction  cf  suits  concerning,  254. 


G1G  INDEX. 

[The  figures  refer  to  pages.] 

CORPORATIONS, 

admissions  of  insolvency,  by  whom  made  in  bankruptcy  cases,  103. 
averment  of  citizenship  and  residence  in  removal  petition,  328, 

329. 
cannot  be  required  to  waive  right  of  removal,  278. 
citizen  of  state  first  creating,  214-216. 
effect  of  legislation  of  two  states,  216. 
of  congressional  legislation,  205,  287. 

COUNTERCLAIM, 

as  affecting  amount  of  matter  in  dispute,  197. 

COUNTS, 

in  indictment,  41. 

COURT  OF  CLAIMS, 

review  of  decisions,  480,  515. 

COURT  OF  PRIVATE  LAND  CLAIMS, 

review  of  decisions,  480,  516. 

CRIMES, 

circuit  court  jurisdiction  over,  189. 

exclusive  over  capital,  189. 
district  court  jurisdiction  over,  22. 
federal  jurisdiction  over,  how  far  exclusive,  24. 
infamous,  if  punishable  by  confinement  for  term  of  years,  35. 
locality  as  affecting  federal  jurisdiction  over,  23. 
piracy,  60. 

CRIMINAL  PROCEDURE, 

complaint  before  commissioner,  25. 
defense,  44. 

arraignment  and  plea,  46. 

demurrer,  46. 

former  jeopardy,  46,  47. 

furnishing  copy  of  indictment  and  lists  of  jurors  and  wit- 
nesses, 44. 

motion  to  quash,  45. 

plea  in  abatement,  45. 
indictment,  counts  to,  41. 

court  to  try,  36. 

finding  of,  35. 

not  amendable,  40. 

requisites  of,  37. 

when  necessary,  35. 


INDEX.  617 

[The  figures  refer  to  pages.l 

CRIMINAL  PROCEDURE— Cont'd, 
information,  43. 
judgment  and  sentence,  53. 
motion  in  arrest  of  judgment,  58. 
place  of  trial,  30,  31. 
preliminary  examination,  28. 
trial  and  incidents,  48. 

bills  of  exception,  54,  55. 

evidence,  accused  testifying,  51. 
confronting  with  witnesses,  48. 
presumption  of  innocence,  50. 

instructions  to  jury,  53. 

verdict,  56. 
review  by  circuit  court  of  appeals  or  supreme  court,  436,  448,  460. 
warrant  of  arrest,  how  issued,  26. 
warrant  of  removal  for  trial,  30. 

CROSS-BILL, 

jurisdiction,  274. 

CUSTOMS, 

jurisdiction  of  suits,  62,  252,  447. 
removal  of  suits  against  officers,  317. 


DE  BENE  ESSE, 

depositions,  364,  410. 

DEBENTURES, 

circuit  court  jurisdiction  of  suits  on,  254. 

DECREE, 

finality  of  for  appeal,  496,  511,  515,  516. 

dismissing  as  to  one  defendant  only  not  final,  511. 
must  settle  principles  and  leave  only  ministerial  acts,  496. 
remanding  removed  case  not  final,  511. 

reversing  and  remanding  for  further  proceedings  not  final, 
511,  515,  516. 
form  of,  417. 

what  injunction  and  receivership  orders  appealable,  though  not 
final,  521. 
see  "Equity  Procedure.'* 


(513  INDEX. 

[The  figures  refer  to  pages. 1 

DEFAULT, 

taking  bill  In  equity  pro  confesso,  393. 

DEMURRER, 

in  equity,  396-398. 
to  indictment,  46. 

DEPOSITIONS, 

adoption  of  state  method  of  taking,  864.  , 
in  common-law  cases,  364. 
in  equity  cases,  410. 

DISCOVERT, 

interrogatories  annexed  to  bill  in  equity,  385. 

DISTRICT  COURT, 

admiralty  jurisdiction  of,  67,  68. 

aliens  and  consuls,  jurisdiction  of  suits,  71. 

bankruptcy,  jurisdiction  of,  73. 

civil  rights  acts,  jurisdiction  of  suits  under,  69. 

composition  of,  judges  holding,  21. 

condemnation  proceedings,  jurisdiction  of,  171. 

criminal  jurisdiction  of,  22. 

drawback  of  duties,  suits  for,  69. 

habeas  corpus,  jurisdiction  in,  174. 

immigration  laws,  suits  under,  72. 

interstate  commerce  act,  suits  under,  170. 

national  banks,  suits  by  or  against,  70. 

nature  of  jurisdiction,  21. 

penalties  and  forfeitures,  jurisdiction  over,  60. 

attempts  to  defraud  government,  66. 

nature,  whether  civil  or  criminal,  63. 

procedure  on,  61-64. 

remission  of,  64. 
postal  laws,  jurisdiction  of  actions  under.  66. 
prize  causes,  jurisdiction  of,  69. 
public  lands,  suits  to  abate  unlawful  inclosures,  169. 
taxes,  suits  to  enforce  liens  of,  66. 
United  States,  suits  against,  161. 

suits  by  or  officers,  65. 

DISTRICT  OF  COLUMBIA, 

inhabitant  not  citizen  of  state  in  jurisdictional  cases,  210. 
review  of  decisions  of  court  of  appeals,  479,  515. 

DIVERSE  CITIZENSHIP, 
see  "Citizenship." 


INDEX.  619 

[The  figures  refer  to  pages.] 

DOMICILE, 

as  an  element  of  citizenship,  210. 

DRAWBACK  OF  DUTIES, 

suits  for,  jurisdiction  of,  69. 

DUTIES, 

see  "Customs." 

E 

EMINENT  DOMAIN, 

see  "Condemnation  Proceedings." 

EQUITY, 

adequate  legal  remedy,  378. 

distinction  between,  and  law  preserved,  353,  354. 

equitable  titles  and  defenses  in  actions  at  law,  353,  354. 

federal  jurisdiction  unaffected  by  state  legislation,  194,  289,  378. 

limits  of  jurisdiction,  378. 

EQUITY  PROCEDURE, 

bill,  averments  as  to  jurisdiction,  383. 
averments  as  to  parties,  384. 
counsel's  signature,  385. 
impertinence  in,  385. 
injunction  bills,  386. 
interrogatories,  385. 
decree,  compelling  performance  of  specific  acts,  420,  421. 
execution  on,  if  for  money,  418. 
form  of,  417. 

sales  of  property  under,  418. 
vacating  of  by  bill  of  review,  423. 

by  motion,  422. 

by  rehearing,  422. 
defaults,  393. 

defense,  mode  of  making,  395,  396. 
answer,  issue  on,  404. 

probative  force  of,  404. 

replying  to  interrogatories,  406. 

waiver  of  demurrer  or  plea  by,  404. 
demurrer,  admissions  by,  398. 

form  and  nature,  396,  397. 

issue  on,  398. 

right  to  answer  over,  398. 


620  INDEX. 

[The  figures  refer  to  pages.  I 

EQUITY  PROCEDURE— Cont'd. 

plea,  issue  on,  400. 
office  of,  396. 
right  to  answer  over,  402. 
process,  on  bill,  391. 

service  of,  392. 
proofs,  commission  to  take,  408. 

depositions,  410. 

examiner  to  take,  411. 

ore  tenus,  409. 
references,  412. 

appointment  of  masters,  412. 

matters  referred,  412. 

report  and  exceptions,  415. 
regulation  by  rules,  380. 
review,  bill  of,  423. 

ERROR,  WRIT  OF, 

see  "Appeal  and  Error." 

EVIDENCE, 

burden  of  proof  in  bankruptcy  cases,  114,  150. 

in  criminal  cases,  50. 
competency  of  witnesses  in  federal  courts,  10. 
depositions  in  common-law  cases,  364. 

in  equity  cases,  410. 
further  proof  in  appellate  courts,  524. 
state  statutes  of,  in  federal  courts,  9,  364,  365. 
taking  proofs  in  equity,  408-412. 

EXAMINATION, 
of  accused,  28. 
of  bankrupt,  124. 
of  party  before  trial,  365. 
of  witness,  364. 

EXCEPTIONS, 

to  answer  in  equity,  406. 
to  master's  report,  415. 
method  of  taking,  416. 
requisites  of,  415,  416. 
time  of  taking,  415,  416. 

see  "Bills  of  Exception." 


INDEX.  621 

[The  figures  refer  to  pages.) 

EXECUTION, 

in  common-law  cases,  376. 
in  equity  cases,  418. 

EXEMPTION, 

of  bankrupt,  145. 

F 

FEDERAL  COURTS, 
no  common  law,  5. 
state  laws  as  rules  of  decision,  8. 

state  construction  of  state  law,  12. 

state  decisions  as  to  real  property,  15. 

state  decisions  as  to  contract  or  personal  relation,  15. 

state  decisions  on  commercial  or  general  questions,  16. 

state  statutes  do  not  affect  equity  jurisdiction,  194. 
the  several  classes  of,  18. 

see  "Common-Law  Procedure";   "Equity  Procedure." 

FEDERAL  JURISDICTION, 
statutory  only,  3. 

FEDERAL  QUESTION, 

circuit  court  jurisdiction  by  reason  of,  202.  283. 

colorable  assertion,  to  confer  jurisdiction.  249. 

corporate  rights  under  federal  statutes,  205,  287. 

suits  on  clerk's  or  marshal's  bond,  205,  476. 

tax  laws  not  constituting  due  process  of  law,  205. 

tax  laws  impairing  obligation  of  contracts,  206. 

various  other  instances,  204-207. 
different  meanings  of,  in  federal  law,  493. 
habeas  corpus  questions,  178. 

supreme  court  review  of  district  or  circuit  court  decisions  by 
reason  of,  460. 

includes  constitutional  or  treaty  questions  only,  463-467. 
supreme  court  review  of  circuit  court  of  appeals  decisions  by 

reason  of,  475,  476. 
supreme  court  review  of  state  court  decisions  by  reason  of,  480. 

includes  constitutional  questions  only,  485-488. 

not  mere  questions  of  construction,  486,  487. 

various  instances  of,  487,  488. 

FINAL  JUDGMENTS  AND  DECREES, 

for  purpose  of  appellate  review,  496,  511,  515,  516. 


622  INDEX. 

[The  figures  refer  to  pages.] 

FORFEITURES, 

jurisdiction  of  suits  for,  60. 
procedure  in  suits  for,  61-64. 
remission  of,  64. 

FORMER  JEOPARDY, 
defense,  46. 
plea,  47. 

H 

HABEAS  CORPUS, 

courts  having  appellate  jurisdiction,  167,  437. 

method  of  review,  50S.  , 

federal  courts  having  cognizance  of,  182,  261. 
federal  questions  as  authorizing,  178. 
matter  involved  incapable  of  pecuniary  estimate,  199. 
nature  of  writ,  175. 
procedure  on,  184. 
reluctance  of  court  to  issue,  181. 
state  concurrent  jurisdiction,  180. 

HIGH  SEAS, 

include  the  Great  Lakes,  23. 


I 
IMMIGRATION, 

jurisdiction  of  suits,  72. 

INDICTMENT, 

see  "Criminal  Procedure." 

INFAMOUS  OFFENSES, 

punishable  by  confinement  for  term  of  years,  35. 

INFORMATION, 

see  "Criminal  Procedure.'* 

INHABITANT, 

equivalent  to  resident  in  considering  district  of  suit,  231. 

INJUNCTION, 

appeals  from  orders  granting,  521. 

bills  for,  386. 

judges  who  may  grant,  387. 

matter  in  dispute,  how  estimated  in  suits  for,  200 


INDEX.  623 

[The  figures  refer  to  pages.! 


INJUNCTION— Cont'd. 

notice  of  application  for,  387. 
temporary  restraining  order,  387. 
to  state  courts,  389. 

INSOLVENCY, 

state  insolvent  laws,  effect  of  bankruptcy  act,  70. 

INSTRUCTIONS, 

to  jury,  in  civil  cases,  363. 
in  criminal  cases,  53. 

INTERLOCUTORY  DECREES  AND  ORDERS, 
review  on  appeal,  521. 

INTERNAL  REVENUE, 

jurisdiction  of  suits,  62,  66,  252,  447. 
removal  of  suits  against  officers,  317. 

INTERROGATORIES, 

in  bill  in  equity,  385,  406. 

INTERSTATE  COMMERCE, 

suits  under  act,  forum,  170,  261,  443. 
involve  federal  question,  207. 


J 
JOINDER, 

of  parties,  to  give  jurisdiction,  249. 
to  prevent  removal  of  cause,  296. 

JUDGES, 

of  circuit  courts,  187. 

of  circuit  courts  of  appeals,  426. 

of  district  courts,  21. 

wbo  may  grant  injunction,  3S7. 

JUDGMENTS, 

finality  of  for  appellate  review,  496,  511.  515,  516. 
in  criminal  proceedings,  58. 
lien  of,  206,  375. 
motion  in  arrest,  58,  373. 
reopening,  374. 
-see  "Decree." 

JUDICIAL  SALES, 

under  order  or  decree,  418. 


(J24  INDEX. 

[The  figures  refer  to  pages.] 

JURISDICTION, 

meaning  of,  431,  459. 

see  "Circuit  Court" ;    "Circuit  Court  of  Appeals" ;   "District 
Court";   "Federal  Jurisdiction";    "Supreme  Court" 

JURY, 

in  bankruptcy  cases,  114. 

in  common-law  cases,  362. 

lists  of  jurors  in  criminal  cases,  44. 

waiver  of,  362. 

L 

LIENS, 

of  judgments,  206,  375. 

of  taxes,  66. 

when  and  how  enforceable  against  absent  defendants,  235-239. 

LIMITATIONS, 

state  statutes,  9,  122. 

time  for  appeal  or  writ  of  error,  495,  510,  516,  521. 

LOCAL  INFLUENCE, 

ground  for  removal  of  cause,  309-312. 


M 

MANDAMUS, 

ancillary  only  in  federal  courts,  193,  271,  285. 

hence  not  a  suit  in  cognizance  of  circuit  court,  1 93,  285, 

MASTER, 

reference  to,  412. 

report  and  exceptions,  415. 

MATTER  IN  DISPUTE, 

see  "Circuit  Court" ;   "Injunction." 

MOTIONS, 

for  injunction,  387. 

for  new  trial,  57,  372. 

in  arrest  of  judgment,  58,  373. 

to  quash  indictment,  45. 

to  remand  cause  removed  from  state  coui't.  348. 


INDEX.  626 

[The  figures  refer  to  pages.] 

N 

NATIONAL  BANKS, 

suits  by  and  against,  70,  207,  255. 

NAVIGATION, 

circuit  court  cognizance  of  suits  concerning,  264. 
federal  question,  206. 

supreme  court  review   of  certain   prosecutions   for  obstructing, 
467. 

NE  EXEAT, 

condition  of  bond  on,  262. 
courts  issuing,  261,  262. 
not  a  matter  of  right,  262. 

NEW  TRIAL, 

a  matter  of  discretion,  57,  372. 

NOTICE, 

of  application  for  injunction,  337. 


OBLIGATION  OF  CONTRACT, 

as  a  federal  question,  206,  466,  487. 

OFFICERS, 

removal  of  suits  against,  317. 


P 

PARTIES, 

averments  as  to  in  bill,  384. 

formal  or  necessary  as  affecting  jurisdiction,  221,  291,  297,  305. 

improper  joinder  to  confer  jurisdiction,  249. 

state  rules  as  to  in  federal  courts,  359. 

see   "Bankruptcy" ;    "Common-Law    Procedure" ;    "Removal 
of  Causes." 

PARTITION, 

where  United  States  part  owner,  260. 

PATENTS, 

jurisdiction  of  suits  concerning,  208,  254,  443,  446. 

Hughes  Fed.Jtxb. — 40 


626  INDEX. 

[The  figures  refer  to  pages.] 

PENALTIES, 

jurisdiction  of  suits  for,  60,  253. 
procedure  in  suits  for,  61-64. 
remission  of,  64. 

PETITION, 

for  removal  of  cause  from  state  court,  321-332. 
in  bankruptcy,  108. 

PIRACY, 

jurisdiction,  60. 

PLEA, 

in  equity,  395-402. 
to  indictment,  44-48. 

PLEADING, 

see  "Common-Law  Procedure";   "Equity  Procedure." 

POSTAL  LAWS, 

actions  under,  66,  252,  319. 
how  far  revenue  laws,  319. 

PRACTICE, 

see  "Common-Law  Procedure" ;    "Criminal  Procedure" ;   "Equity 
Procedure." 

PREJUDICE  AND  LOCAL  INFLUENCE, 
ground  for  removal  of  cause,  309-312. 

PRIZE, 

district  court  jurisdiction  over,  69. 

supreme  court  appellate  jurisdiction  over,  459. 

PROBATE  PROCEEDINGS, 

federal  jurisdiction  of,  192,  280. 

PROCEDURE, 

see  "Common-Law  Procedure"  ;    "Criminal  Procedure" ;    "Equity 
Procedure." 

PROCESS, 

In  bankruptcy,  106. 

in  equity  on  bill,  391. 

in  suits  against  United  States,  1C~>. 

of  state  courts,  bow  far  adopted,  356. 

on  appeal  or  error,  504,  509. 

PROHIBITION, 

a  suit  at  law,  193. 


INDEX.  627 

[The  figures  refer  to  pages.J 


PROOFS, 

In  equity,  408-412. 

of  claims  in  bankruptcy,  116. 

on  appeal,  524. 

see  "Evidence";   "Witnesses." 

PUBLIC  LANDS, 

suits  for  unlawful  enclosures,  169,  261. 

PUBLICATION, 

in  suits  to  enforce  liens,  etc.,  239. 


Q 

QUASHING, 

indictment,  45. 

QUO  WARRANTO, 

statutory  action  in  nature  of,  a  suit  at  law,  193. 


R 

RECEIVER, 

appeals  from  orders  appointing,  521. 

bankruptcy  proceedings,  111. 

suits  against  not  necessarily  a  federal  question,  209,  288. 

REFERENCES, 

appointment  of  masters,  412. 
matters  referred,  412. 
report  and  exceptions,  415. 

REMEDY  AT  LAW, 

effect  on  jurisdiction  of  equity,  378. 

REMOVAL  OF  CAUSES, 

bond,  form  and  condition  of,  332. 

character  of  suit  removable,  285,  293. 

circuit  court  must  have  original  cognizance  of,  288.  293.  310. 

citizens  and  aliens,  controversies  between,  299. 

controversies  between  aliens  not  removable,  299. 
citizens  of  different  states,  controversies  between,  293.\ 

assignment  as  affecting  right,  295. 

devices  to  prevent,  296. 

parties,  arrangement  of,  297. 

removable  though  in  district  of  neither  litigant,  294. 


628  INDEX. 

[The  figures  refer  to  pages.) 

REMOVAL  OF  CAUSES— Cont'd, 
civil  rights,  state  denial,  314. 

defendant  alone  entitled  to  when  federal  question  involved,  291. 
defendant  nonresident  alone  entitled  to  when  diverse  citizenship 

involved,  294,  300,  309. 
defendant  under  separable  controversy  provision,  307. 
either  party  under  land  grants  of  different  states,  298. 
federal  question  as  authorizing,  283. 

federal  corporations  as  involving,  287. 

plaintiff's  pleading  must  show,  285. 

plurality  of  parties,  291. 
takes  up  entire  case,  including  nonfederal  questions,  290. 
filing  transcript,  341-345. 

place  to  file,  343. 

status  between  filing  petition  and  filing  transcript,  341. 

time  of,  not  jurisdictional,  343-345. 
from  district  court,  275. 
land  grants  of  different  states,  298. 
object  of  allowing  from  state  courts,  276. 
petition,  amendable,  how  far,  324. 

averments  as  to  citizenship,  327. 

as  to  corporations,  328. 

as  to  denial  of  civil  rights,  331. 

as  to  federal  questions,  326. 

as  to  prejudice  or  local  influence,  331. 

as  to  revenue  prosecutions,  331. 

as  to  separable  controversies,  330. 

filing,  effect  on  state  court  proceedings,  340. 
not  a  general  appearance,  345. 
place  of,  326. 
steps  at,  339. 
time  of,  333-338. 

form  and  essentials  of,  322,  320.  333. 

necessity  for,  jurisdictional,  322. 

record  may  supplement,  323. 
pleadings,  how  made  up  after  removal,  342. 
prejudice  or  local  influence,  309. 

must  be  originally  cognizable  by  circuit  court,  310. 

parties  who  may  remove,  311. 

procedure,  312. 
procedure  subsequent  to,  341,  345. 
remand,  motion  to,  346. 


INDEX.  629 

[The  figures  refer  to  pages.] 

REMOVAL  OF  CAUSES— Cont'd. 

revenue  officers,  suits  against,  317. 

civil  and  criminal  cases,  317. 

federal  employes  entitled  to  remove,  318. 

procedure  under,  319. 

revenue  cases,  meaning  of  term,  318,  319. 
separable  controversies,  301. 

character  of  controversy,  302. 

instances  of,  306. 

joint  suits,  304. 

plaintiff's  pleading  must  show,  302. 

takes  entire  ease,  308. 

whether  resident  defendant  may  remove,  307. 
statutes  authorizing,  281,  298,  301,  309,  317. 
United  States,  suits  by,  292. 
waiver  of  right  to,  277. 

not  by  giving  attachment  bond  in  state  court,  278. 

nor  by  contesting  in  state  court  after  petition  denied,  278, 
340. 

nor  by  special  appearance  in  state  court,  278. 

state  cannot  require  general  agreement  to  waive,  278. 

RESIDENCE, 

allegation  of  not  equivalent  to  allegation  of  citizenship,  211. 

averments  of  as  to  corporations,  329,  330. 

equivalent  to  inhabitant  in  considering  district  of  suit,  231. 

RESTITUTION, 

after  reversal,  of  money  collected  on  decree,  421. 

RESTRAINING  ORDER, 

on  application  for  injunction,  3S7. 

REVENUE  CAUSES, 

jurisdiction,  62,  66,  252,  447. 

removal  of  suits  against  revenue  officers,  317. 

REVIEW, 

bill  of,  423. 

see  "Appeal  and  Error." 

RULES  OF  COURT, 

in  actions  at  law,  355. 
in  equity,  380,  547. 
supreme  court,  527. 


630  INDEX. 

[The  figures  refer  to  pages.J 


SCIRE  FACIAS, 

jurisdiction,  272. 

SENTENCE, 

in  criminal  proceedings,  5S. 

SEPARABLE  CONTROVERSY, 
removal  of  cause,  301-308. 

SERVICE, 

of  process,  in  actions  at  law,  358. 
in  bankruptcy,  106. 
in  suits  in  equity,  392. 
in  suits  against  United  States,  165. 
on  appeal  or  error,  504,  509. 

SESSIONS, 

of  courts,  189,  342,  451. 

SET-OFF; 

how  far  pleadable  in  federal  courts,  9,  354. 

matter  in  dispute,  how  estimated  when  pleaded,  198. 

SHIPPING, 

prosecutions  against  owners  or  officers  of  vessels  for  negligence 
causing  death,  259. 

SLAVE  TRADE, 

jurisdiction  of  suits  under  slave  trade  laws,  254. 

STATE, 

not  a  citizen,  212. 

supreme  court  jurisdiction  of  controversies  to  which  a  party, 

348,  351. 
territories  and  District  of  Columbia  not  included  in,  210. 

STATE  COURTS, 

Injunctions  to  stay  proceedings,  389. 
jurisdiction  on  habeas  corpus,  180. 
practice,  how  far  adopted,  355-377. 
removal  of  causes  from,  275-347. 
writ  of  error  to,  480-494. 

STATE  LAWS, 

administered  by  federal  courts.  8-17. 
adoption  of  practice  of  state  courts,  355-377. 


INDEX.  631 

[The  figures  refer  to  pages.] 

STATE  LAWS— Cont'd. 

equity  jurisdiction  not  affected,  194. 
insolvent  laws,  effect  of  bankruptcy  act,  79. 
tax  laws,  federal  questions  under,  206. 

STATUTES  OF  LIMITATION, 

as  affecting  provability  of  debt  in  bankruptcy,  122. 
how  far  pleadable  in  federal  courts,  9. 

SUIT 

see  "Circuit  Court" ;    "Removal  of  Causes" ;    "Supreme  Court" 

SUIT  IN  EQUITY, 

see  "Equity  Procedure." 

SUPERSEDEAS, 

bond  to  make  effective,  506. 

condition  and  requisites  of,  507. 
effect  of,  507. 

extent  of  court's  discretion  in  granting  or  refusing,  510. 
see  "Appeal  and  Error." 

SUPREME  COURT, 

appellate  jurisdiction, 

bankruptcy  appeals,  477. 
circuit  and  district  court  appeals,  452. 
capital  criminal  cases,  460. 
constitutional  or  treaty  questions,  460-467. 
jurisdictional  questions  on  certificate,  453-459. 

requisites  of  certificate,  454. 
obstructions  to  navigation,  467. 
prize  causes,  459. 
trust  acts,  suits  under,  467. 
circuit  court  of  appeals  decisions  on  certificate,  469,  512. 
by  certiorari,  472,  513. 
by  writ  of  error  or  appeal,  474,  514. 
constitutional  or  treaty  questions,  460. 
classes  of,  463-467. 
how  made  to  appear,  462. 
not  mere  construction  of  statute,  465, 
court  of  claims,  480,  515. 
court  of  private  land  claims,  4S0,  516. 
District  of  Columbia  court  of  appeals,  479,  515. 


632  INDEX. 

[The  figures  refer  to  pages.] 

SUPREME  COURT— Cont'd. 

state  courts,  480. 

constitutionality  of  provision  allowing,  481. 
courts  subject  to  review,  483. 
parties  who  may  ask,  485. 
questions  reviewable,  485-488,  518. 
how  made  to  appear,  489. 
process  of  review,  517. 
suits  or  proceedings  reviewable,  483. 
territorial  courts,  478,  515. 

include  the  Philippines  and  Porto  Rico,  479. 
organization,  450. 
original  jurisdiction  of,  ambassadors,  etc.,  347,  352. 

state  as  party,  348,  351. 
sessions,  451. 

see  "Appeal  and  Error" ;    "Circuit  Court  of  Appeals.' 

SURETY  COMPANY, 

suable  wherever  bond  given,  231. 


T 

TAXES, 

federal  questions  under  tax  laws,  206. 
suits  to  enforce  liens,  66. 
see  "Revenue  Causes." 

TERRITORIAL   COURTS, 

review  of  decisions,  444,  478,  515. 

TRIAL, 

in  civil  cases,  362-372. 
In  criminal  cases,  48-57. 
on  appeal  or  error,  524. 

TRUSTS, 

suits  under  acts  forbidding,  262,  467. 


u 

UNITED  STATES, 

priority  in  distribution  of  bankruptcy  assets,  143. 
suits  against,  aliens'  claims,  164. 

appeal,  course  and  form  of,  16G,  167,  443. 


INDEX.  633 

[The  figures  refer  to  pages.] 


UNITED  STATES— Cont'd 

contractual  money  demands  only,  1G2. 
forum,  161,  164,  260. 
petition  and  process  on,  165. 
partition  suits,  260. 
suits  by,  circuit  court  jurisdiction,  190,  202,  251. 
circuit  court  of  appeals  jurisdiction,  443. 
district  court  jurisdiction,  65* 
right  of  removal  in,  292. 
supreme  court  jurisdiction,  467. 

UNITED  STATES  COMMISSIONERS, 
powers  of,  25-27. 

UNITED  STATES  COURTS, 
see  "Federal  Courts." 


V 

VERDICT, 

directing  in  federal  courts,  3G6. 
practice  of  state  courts,  how  far  adopted,  371. 
requisites  in  civil  cases,  371. 
in  criminal  cases,  56. 


w 

WAIVER, 

of  jury  in  federal  court,  362. 

of  privilege  of  suit  in  district  of  residence  only,  229. 

as  affecting  right  to  remove  case,  294. 
of  right  to  remove  case  from  state  court,  277,  340. 

WARRANT, 

of  arrest  in  criminal  cases,  26. 

of  removal  for  trial,  30. 

of  seizure  in  bankruptcy,  108. 

WITNESSES, 

competency  in  federal  courts,  10. 
lists  to  be  furnished  in  criminal  cases,  44. 
right  of  accused  to  be  confronted  with  witnesses,  48. 
to  testify,  51. 


634  INDEX. 

[TLw  figures  refer  to  pages.] 

WRIT  OF  ATTACHMENT, 
to  enforce  decree,  421. 

WRIT  OF  ERROR, 

see  "Appeal  and  Error." 

WRIT  OF  SEQUESTRATION, 
to  enforce  decree,  421. 


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3arron>s  on  negligence. 

1899.    034  pages.    $3.75  delivered. 
By  MORTON  BARROWS,  A.  B.,  LL.  B. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  and  Essential  Elements. 

2.  Contributory  Negligence. 

3.  Liability  of  Master  to  Servant. 

4.  Liability  of  Master  to  Tbird  Persons. 

5.  Common  Carriers  of  Passengers. 

6.  Carriers  of  Goods. 

7.  Occupation  and  Use  of  Land  and  Water. 

8.  Dangerous  Instrumentalities. 

9.  Negligence  of  Attorneys,  Physicians,  and  Public  Officers. 

10.  Death  by  Wrongful  Act. 

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TABLE    OF   CONTENTS. 

Chap. 

1.  Nature  and  Office  of  Interpretation. 

2.  Construction  of  Constitutions. 

3.  General  Principles  of  Statutory  Construction. 

4.  Statutory  Construction ;    Presumptions. 

5.  Statutory  Construction ;    Words  and  Phrases. 
G.  Intrinsic  Aids  in  Statutory  Construction. 

7.  Extrinsic  Aids  in  Statutory  Construction. 

8.  Interpretation  with  Reference  to  Common  Law. 

9.  Retrospective  Interpretation. 

10.  Construction  of  Provisos,  Exceptions,  and  Saving  Clauses. 

11.  Strict  and  Liberal  Construction. 

12.  Mandatory  and  Directory  Provisions. 

13.  Amendatory  and  Amended  Acts. 

14.  Construction  of  Codes  and  Revised  Statutes. 

15.  Declaratory  Statutes. 

1G.  The  Rule  of  Stare  Decisis  as  Applied  to  Statutory  Construc- 
tion. 

17.  Interpretation  of  Judicial  Decisions  and  the  Doctrine  of  Prec- 
edents. 


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By  H.  CAMPBELL  BLACK, 

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Titles,  etc. 

Second  Edition. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  The  United  States  and  the  States. 

3.  Establishment  and  Amendment  of  Constitutions. 

4.  Construction  and  Interpretation  of  Constitutions. 

5.  The  Three  Departments  of  Government. 
G.  The  Federal  Executive. 

7.  Federal  Jurisdiction. 
S.  The  Powers  of  Congress. 
9.  Interstate  Law. 

10.  Republican  Government  Guarantied. 

11.  Executive  Power  in  the  States. 

12.  Judicial  Powers  in  the  States. 

13.  Legislative  Power  in  the  States. 

14.  The  Police  Power. 

15.  The  Power  of  Taxation. 

1G.  The  Right  of  Eminent  Domain. 

17.  Municipal  Corporations. 

18.  Civil  Rights,  and  Their  Protection  by  the  Constitution. 

19.  Political  and  Public  Rights. 

2D.  Constitutional  Guaranties  in  Criminal   Cases. 

21.  Laws  Impairing  the  Obligation  of  Contracts. 

22.  Retroactive  Laws. 


C6559  3 


(£I?tlbs  on  Suretyship  cmb 
(Buaranty. 

1907.     572  pages.     $3.75  delivered. 

By  FRANK  HALL  CHILDS, 

of  the    Chicago    Bar. 


TABLE    OF   CONTENTS. 
Chap. 

1.  Definitions,  Parties,  Distinctions,  and  Classifications. 

2.  Formation  of  the  Contract. 

3.  The  Statute  of  Frauds. 

4.  Construction  of  the  Contract. 

o.  Rights  and  Liabilities  as  Between  the  Creditor  and  the  Sure- 
ty. 

G.  Rights  and  Liabilities  of  the  Surety  and  of  the  Principal  as  to 
each  other. 

7.  Rights  and  Liabilities  of  Co-Sureties  as  to  each  other. 

8.  Parties  to  Negotiable  Instruments  Occupying  the  Relation  of 

Sureties. 

9.  Official  Bonds. 

10.  Judicial  Bonds. 

11.  Bail  Bonds  and  Recognizances. 


C<;."i.-,9-4 


Clark  on  Contracts. 

1904.     693  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr. 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE    OF    CONTENTS. 


Chap. 

1.  Contract  in  General. 

2.  Offer  and  Acceptance. 

3.  Classification  of  Contracts. 

4.  Requirement  of  Writing. 

5.  Consideration. 

G.  Capacity  of  Parties. 

7.  Reality  of  Consent. 

8.  Legality  of  Object. 

9.  Operation  of  Contract. 

10.  Interpretation  of  Contract. 

11.  Discharge  of  Contract. 

12.  Agency. 

13.  Quasi  Contract. 


( 16559—5 


Clark  on  Corporations. 

1907.     721  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts. 

Second  Edition:  By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incorporation. 

4.  Relation  between  Corporation  and  its  Promoters. 

5.  Powers  and  Liabilities  of  Corporations. 
G.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State. 

9.  Dissolution  of  Corporations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  Corporations— Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


CG559-G 


Clark's  Criminal  £atr>. 

1902.     517  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Definition  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 

6.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  against  the  Government. 

1G.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

IS.  Former  Jeopardy. 


C0559-7 


Clark 

s  Criminal  Proccbure. 

1S95.     665  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  ' 

'Handbook  of  Criminal  Law,"  and  a  "Handbook  of 
Contracts." 

TABLE    OF   CONTENTS. 

Chap 

1. 

Jurisdicti 

on. 

o 

Apprehension  of  Persons  and  Property. 

3. 

Preliminary  Examination,  Bail,  and  Commitment. 

4. 

Mode  of 

Recusation. 

5. 

Pleading- 

—The  Accusation. 

6. 

Pleading- 

—The  Accusation. 

7. 

Pleading- 

—The  Accusation. 

8. 

Pleading- 

—The  Accusation. 

9. 

Pleading- 

—The  Accusation. 

10. 

Pleading 

and  Proof. 

11. 

Motion  to  Quash. 

12. 

Trial  and  Verdict. 

13. 

Proceedings  after  Verdict. 

14. 

Evidence 

15. 

Habeas  Corpus. 

C6559-8 


Crostpell  on  (fxecutors  anb 
(tbmtmstrators. 

1897.     GOG  pages.     $3.75  delivered. 

By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE    OF    CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Who  may  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

6.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors. 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Interstate  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

10.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

23.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations — Set-off. 

25.  Evidence  and  Costs. 


C6559-9 


(£ aton  on  Equity. 

1901.     734  pages.     $3.75  delivered. 

By  JAMES  W.  EATON, 

Editor    3d    Edition    Collier    on    Bankruptcy.    Co-Editor    American 

Bankruptcy  Reports,  Eaton  and  Greene's  Negotiable 

Instruments  Law,  etc. 


TABLE    OF   CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

Partition,  Dower,  and  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


06559-10 


fetter  on  (Equity. 

1895.     4G3  pages.     $3.75  delivered. 
By  NORMAN  FETTER. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Nature  and  Definition  of  Equity. 

2.  Principles  Defining  and  Limiting  Jurisdiction. 

3.  The  Maxims  of  Equity. 

4.  The  Doctrines  of  Equity. 

5.  The  Doctrines  of  Equity, 
tj.  The  Doctrines  of  Equity. 

7.  Grounds  for  Equitable  Relief. 

8.  Property  in  Equity — Trusts. 

9.  Property  in  Equity — Mortgages,  Liens,  and  Assignments. 

10.  Equitable  Remedies. 

11.  Equitable  Remedies. 

12.  Equitable  Remedies. 

13.  Equitable  Remedies. 

14.  Reformation,  Cancellation,  and  Quieting  title. 

15.  Ancillary  Remedies. 


C6559-11 


(Barbner  on  H)tlls. 

1903.     726  pages.     $3.75  delivered. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University  Law  School. 


TABLE    OF   CONTENTS. 

Chap. 

1.  History  of  Wills— Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

G.  Restraint  upon  Power  of  Testamentary  Disposition — Who  may 
be  Beneficiaries — What  may  be  Disposed  of  by  Will. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlling  Principles. 

14.  Construction — Description  of  Subject-Matter. 

15.  Construction — Description  of  Beneficiary. 

16.  Construction — Nature  and  Duration  of  Interests. 

17.  Construction — Vested  and  Contingent   Interests — Remainders 

— Executory  Devises. 
IS.  Construction — Conditions. 

19.  Construction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  —  Specific  —  Demonstrative  —  Cumulative 

— Lapsed  and  Void  —  Abatement  —  Ademption  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 

23.  Election. 

24.  Rights  of  Beneficiaries  Not  Previously  Discussed. 


C6559-12 


(Beorge  on  Partnership, 

1897.     G16  pages.    $3.75  delivered. 
By  WILLIAM    GEORGE. 


TABLE    OF   CONTENTS. 
Chap. 

1.  Definition  and  Establishment  of  Relation. 

2.  Kinds  of  Partnerships  and  Partners. 

3.  Characteristic  Features  of  Partnerships. 

4.  Implied  Rights  and  Liabilities  Inter  Se. 
r>.  Articles  of  Partnership. 

G.  Rights  and  Liabilities  as  to  Third  Persons. 

7.  Actions  Between  Partners. 

8.  Actions  Between  Partners  and  Third  Persons. 

9.  Dissolution. 

10.  Limited  Partnerships. 

11.  Joint-Stock  Companies. 


C6559-13 


(Blenn's  3ntcrnattonal  taw. 

1895.     478  pages.     $3.75  delivered. 

By  CAPT.  EDWIN  F.  GLENN, 

Acting  Judge  Advocate,  United  States  Army. 


TABLE    OF   CONTENTS. 

INTRODUCTION. 
Chap. 

1.  Persons  in  International  Law. 

2.  The  Commencement  of  States— Fundamental  Rights  and  Du- 

ties. 

3.  Territorial  Property  of  a  State. 

4.  Territorial  Jurisdiction. 

5.  Jurisdiction  on  the  High  Seas  and  Unoccupied  Places. 

6.  The  Agents  of  a  State  in  International  Relations. 

7.  Intervention. 

8.  Nationality. 

9.  Treaties. 

10.  Amicable  Settlement  of  Disputes. 

11.  International  Relations  in  War. 

12.  Effects  of  War — As  to  Persons. 

13.  Effects  of  War — As  to  Property. 

14.  Postliminium. 

15.  Military  Occupation. 

10.  Means  of  Carrying  on  Hostilities. 

17.  Enemy  Character. 

IS.  Non-Hostile  Relations. 

19.  Termination  of  War. 

20.  Of  Neutrality  in  General. 

21.  The  Law  of  Neutrality  between  Belligerent  and  Neutral  Stairs. 

22.  Contraband. 

23.  Blockade. 

24.  Visit  and  Search,  and  Right  of  Angary. 
Appendix. 


CG559-14 


f)alc  on  Bailments  anc 
Carriers. 

1896.  675  pages.     $3.75  delivered. 
By  WM.  B.  HALE. 


TABLE    OF    CONTENTS. 
Chap. 

1.  In  General. 

2.  Bailments  for  Sole  Benefit  of  Bailor. 

3.  Bailments  for  Bailee's  Sole  Benefit. 

4.  Bailments  for  Mutual  Benefit — Pledges-. 

5.  Bailments  for  Mutual  Benefit — Hiriug. 

6.  Innkeepers. 

7.  Carriers  of  Goods. 

8.  Carriers  of  Tassengers. 

9.  Actions  against  Carriers. 


C6559-15 


{)ale  on  X)amages. 

1896.     47G  pages.     $3.75  delivered. 

By  WM.  B.  HALE, 

Author  of  "Bailments  and  Carriers." 


TABLE    OF    CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 
0.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph   Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 
11.  Breach  of  Marriage  Promise. 


CG559-16 


fyak  on  (Torts. 

1890.    636  pases.    $3.75  delivered. 

By  WM.  B.  HALE. 
Author  of  "Bailments  and  Carriers,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


CG559-17 


£)opkms  on  Heal  Property 

1890.     5S9  pages.     $3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE   OF   CONTENTS. 

Chap. 

1.  What  is  Real  Property. 

2.  Tenure  and  Seisin. 

3.  Estates  as  to  Quantity— Fee  Simple 

4.  Estates  as  to  Quantity — Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional   Life   Estates. 
(!.  Estates  as  to  Quantity— Legal  Life  Estates. 

7.  Estates  as  to  Quantity — Less    thau    Freehold. 

8.  Estates  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality— Mortgages. 

10.  Equitable  Estates. 

11.  Estates  as  to  Time  of  Enjoyment— Future  Estates. 

12.  Estates  as  to  Number  of  Owners — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 

16.  Title. 


CG559-18 


f)ugfyes  on  Ctbmiralty. 

1901.     504  pages.     $3.75  delivered. 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE    OF    CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Subject-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Respondentia  ;  and  Liens  for  Supplies,  Repairs,  aud 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act  of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(6)  The  Act  of  March  3,  1899,  as  to  Obstructing  Channels. 

3.  The  Limited  Liability  Acts,  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  26,  1884. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 

sels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


C6559-19 


fyugfoes  on  $ebtva\ 
3urtsbtction  ano  Procedure. 

1904.    034  pages.    $3.75  delivered. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  on  Admiralty."  and  Lecturer  at  the  George 
Washington  University  Law  School. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Introduction— What  it  Comprehends. 

2.  The  District  Court— Its  Criminal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  The    District    Court— Criminal     Jurisdiction— Miscellaneous 

Jurisdiction. 

5.  The  District  Court— Bankruptcy. 
0-8.  Same'— Continued. 

9.  The  District  Court — Miscellaneous  Jurisdiction. 

10.  The  Circuit  Court— Original  Jurisdiction. 

11-12.  Same — Continued. 

13.  The  Circuit  Court— Jurisdiction  by  Removal. 

14-15.  Same — Continued. 

10  The  Circuit  Court— Jurisdiction  by  Removal— Original  Juris- 
diction of  the  Supreme  Court— Other  Minor  Courts  of  Orig- 
inal Jurisdiction. 

17.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction— Courts  of  Law. 

18.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 

diction—Courts of  Equity. 

19.  Same— Continued. 

20.  Appellate  Jurisdiction^The  Circuit  Court  of  Appeals. 

21.  Appellate  Jurisdiction— The  Supreme  Court. 

22.  Procedure  on  Error  and  Appeal. 

The  U   S.  Supreme  Court  Rules  and  the  Rules  of  Practice  for  the 
Courts  of  Equity  of  the  United  States  are  given  in  an  appendix. 


C0559-20 


3ngersoll  on  Public 
Corporations. 

1904.     738  pages.    $3.75  delivered. 

By  HENRY  H.  INGERSOLL,  LL.  D., 

Dean  of  the  University  of  Tennessee  School  of  Law. 


TABLE    OF    CONTENTS. 

Part  1.— QUASI  CORPORATIONS. 

Chap. 

1.  Nature,  Creation,  Classification. 

2.  Quasi  Corporations — Liabilities,  Elements,  Counties,  Property, 

etc. 

3.  Same — Continued. 

4.  Same — Continued. 

Part  2.— MUNICIPAL  CORPORATIONS. 

5.  Municipal    Corporations. 

G.  Their  Creation — How — By  What  Bodies — Subject  to  What  Re- 
strictions, etc. 

7.  Their  Alteration  and  Dissolution. 

8.  The  Charter. 

9.  Legislative  Control. 

10.  Proceedings  and  Ordinances. 

11.  Officers,  Agents,  and  Employes. 

12.  Contracts. 

13.  Improvements. 

14.  Police  Powers  and  Regulations. 

15.  Streets,  Sewers,  Parks,  and  Public  Buildings. 
1(3.  Torts. 

17.  Debts,  Funds,  Expenses,  and  Administration. 

18.  Taxation. 

19.  Actions. 

Part  3.— QUASI  PUBLIC  CORPORATIONS. 

20.  Quasi  Public  Corporations. 

21.  Railroads. 

22.  Electric  Companies. 

X).  Water  and  Gas  Companies. 

24.  Other  Quasi  Public  Corporations. 


C6559-21 


3a^$arb  on  (Eorts. 

1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE    OF   CONTENTS. 

Part  1.— IN  GENERAL 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 

CG559-22 


XKcKefoey  on  (£»tbence. 

1907.     540  pages.     $3.75  delivered. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Author  of  "Connnon-Law  Pleading,"  etc. 

Second  Edition. 


TABLE    OF   CONTENTS. 

Chap. 

1.  Introductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof. 

5.  Presumptions. 
G.  Admissions. 

7.  Confessions. 

8.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 

Logically  Relevant. 

9.  Character. 

10.  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  Examination  of  Witnesses. 

14.  Writings. 

15.  Demurrers  to  Evidence. 

C6559-23 


Horton  on  Bills  anb  Botes. 

1900.     600  pages.     $3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON. 
Third  Edition:    By  Francis  B.  Tiffany. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Of  Negotiability  so  far  as  it  Relates  to  Bills  and  Notes. 

2.  Of  Negotiable  Bills  and  Notes,  and  their  Formal  and  Essen- 

tial  Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

5.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 
0.  Transfer. 

7.  Defenses  as  against  Purchaser  for  Value  without  Notice. 

8.  The  Purchaser  for  Value  without  Notice. 

9.  Of  Presentment  and  Notice  of  Dishonor. 
10.  Checks. 

Appendix. 


CG559-24 


Sfyipmcm  on  Common 

£atp 

Pleabing. 

1895.     G15  pages.  $3.75  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B 

Second  Edition. 

TABLE    OF   CONTENTS. 

Chap 

1. 

Forms  of  Action. 

2. 

Forms  of  Action. 

o. 

The  Parties  to  Actions. 

4. 

The  Proceedings  in  an  Action. 

5. 

The  Declaration. 

G. 

The  Production  of  the  Issue. 

7. 

Materia Ity  in  Fleading. 

8. 

Singleness  or  Unity  in  Pleading. 

9. 

Certainty  in  Pleading. 

10. 

Consistency  and  Simplicity  in  Pleading. 

11. 

Directness  and  Brevity  in  Pleading. 

12. 

Miscellaneous  Rules. 
Appendix. 

CG559-25 


Sfytpman  on  (Squity 
Plcabing. 

1897.     644  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 
Author  of  "Shipman's  Coninioii-Law   Pleading." 


TABLE    OF    CONTENTS. 

Chap. 

1.  Equity  Pleading  in  General. 

2.  Parties. 

3.  Proceedings  in  an  Equitable  Suit. 

4.  Bills  in  Equity. 

5.  The  Disclaimer. 

6.  Demurrer. 

7.  The  Plea. 

8.  The  Answer. 

9.  The  Replication. 


C6559-26 


Smttfy's  <£ lementary  taw. 

1S9G.     3G7  pages.     $3.75  delivered. 

BY  WALTER  DENTON  SMITH, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE    OF   CONTENTS. 
Chap. 

Part  1.— ELEMENTARY  JURISPRUDENCE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 

5.  Equity. 

6.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 
S.  Persons  and  Personal  Rights. 

9.  Property. 

10.  Classification  of  the  Law. 

Part  2.— THE  SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incorporeal  Hereditaments. 

15.  Estates  in  Real  Property. 

16.  Title  to  Real  Property. 

17.  Personal  Property. 

18.  Succession  After  Death. 

19.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24.  Remedies. 

25.  Courts  and  their  Jurisdiction. 

26.  Procedure. 

27.  Trials. 


C6559 


L 


(Tiffany  on  Ctgcncy. 

1903.     609  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  by  Wrongful  Act,"  "Law  of  Sales,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1— IN  GENERAL. 

1.  Introductory— Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent— Appointment. 

3.  Same  (continued)— Ratification.  _ 

4.  What  Acts  Can  be  Done  by  Agent— Illegality— Capacity  ot 

Parties— Joint  Principals  and  Agents. 

5.  Delegation  by  Agent— Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

part  o_RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND   THIRD   PERSON. 

8.  Liability  of  Principal  to  Third  Person— Contract. 

9.  Same  (continued). 

10.  Admissions  by  Agent— Notice  to  Agent. 

11    Liability  of  Principal  to  Third  Person— Torts  and  Crimes. 

12.  Liability  of  Third  Person  to  Principal. 

Part  3— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4-RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGENT. 

15.  Duties  of  Agent  to  Principal. 

16.  Duties  of  Principal  to  Agent. 

Appendix. 


1 


C6559-28 


(Tiffany  on  Persons  anb 
Domestic  delations. 

189G.     ;j89  pages.     $3.75  delivered. 
By  WALTER  C.  TIFFANY. 


Chap. 


TABLE    OF    CONTENTS. 


Part  1.— HUSBAND  AND  WIFE. 


1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rights  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-Contractual  Obliga- 

tions. 

5.  Wife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  Parents. 

10.  Rights  of  Parents  and  of  Children. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

part   4.— INFANTS,   PERSONS    NON    COMPOTES    MENTIS, 
AND   ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part  5.— MASTER  AND    SERVANT. 
1G.  Creation  and  Termination  of  Relation. 


C6559-29 


(Tiffany  on  Sales. 

1908.     534  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 
(Harvard.) 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE   OF   CONTENTS. 
Chap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

not  Specific. 

5.  Fraud,  and  Retention  of  Possession. 

6.  Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Rights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act. 


CG559-30 


Dance  on  3nsut*ance. 

189G.    GS3  pages.    $3.75  delivered. 

By  WILLIAM  REYNOLDS  VANCE, 

Professor  of  Law  in  the  George  Washington  University. 


The  principal  object  of  this  treatise  is  to  give  a  consistent  state- 
ment of  logically  developed  principles  that  underlie  all  contracts  of 
insurance,  with  subsidiary  chapters  treating  of  the  rules  peculiar 
to  the  several  different  kinds  of  insurance.  Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  policy. 

This  treatment  will  help  to  bring  about,  we  believe,  the  much 
desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover, — 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract. 
Tar  ties. 

Insurable  Interest. 
Making  tbe  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment. 
Consent  (if  the  Parties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire   Policy. 
Terms  of  the  Life  Policy. 
Marine  Insurance. 
Accident  Insurance. 

Guaranty,  Credit,  and  Liability  Insurance. 
Appendix. 


CG559-31 


LAW  LIBRARY 
UNIVERSITY'  OF  CALIFORNIA 


SOUTHERN  REGIONAL  LIBRARY  WCI|^JJ 


AA    000  770  795    3 


